151 Va. 545 | Va. | 1928
delivered the opinion of the court.
The accused has been convicted and sentenced to two j^ears confinement in the penitentiary upon an indictment charging him with seducing an unmarried female, of previous chaste character, under promise of marriage. There are three errors assigned. The first two may be treated together.
The trial court gave instruction No. 2, which reads: “The court instructs the jury that the exact time of the seduction is never material in a prosecution for the offense, and that it is not, therefore, essential that the prosecutrix should be corroborated as to the exact date. And the court further instructs the jury that if they should believe from the evidence that the seduction of and illicit connection of the prisoner with the prosecutrix took place within the statutory period of two years prior to the finding of the indictment by the grand jury, they must find the prisoner guilty.” It refused to give instruction No. 1, offered by the accused, which reads: “The court instructs the jury that ordinarily the actual time of committing an offense is not usually the essence of the offense, and therefore it is not necessary to prove the actual time of the commission of the crime charged; but the court tells the jury that in this case the time of the commis
After this instruction had been refused, the defendant tendered instruction 1-A, which was also rejected. This reads: “The court instructs the jury that the charge in the indictment is that the defendant did seduce under promise of marriage Ida Sheets, and that the said Ida Sheets was at that time of previous chaste character; and the court further instructs the jury that time is not usually of the essence of the offense. This is true as a general proposition; but in the case in judgment if there was any seduction at all it was on December 25, 1925, and so the jury should determine whether or not there was, in fact, a seduction at that time.”
The contention is that in this case the jury should have been instructed to acquit the defendant, unless the alleged seduction took place on December 25, 1925.
The general rule certainly and clearly denies such a contention.
The case of State v. Mitchell, 229 Mo. 697, 129 S. W. 921, 138 Am. St. Rep. 433, is cited to support this unqualified statement. There an instruction was offered which directed the jury “that it was essential, in order to authorize a conviction of defendant that the sexual intercourse with the prosecuting witness had to be indulged on a particular date; that is, on the twenty-eighth day of July, 1908. This manifestly is not the law. If the defendant, under and by a promise of marriage, at any time within three years before the filing of the information, seduced and debauched the prosecuting witness, an unmarried female of good repute and under the age of twenty-one years, then the jury would be authorized in finding him guilty.” In that case the accused admitted having had sexual intercourse with the prosecutrix, but denied that it was on the date named by her, that is, on the 28th day of July, 1908.
The precise question here presented was before the Iowa court in State v. Ball, 49 Ia. 441, in which this appears: “The prosecutrix testified quite positively that the crime of defendant was consumated on the 7th of July, the time charged in the indictment, at the house of a person named by her. The defendant introduced evidence tending to prove that he was not at the house named within three or four days of the time fixed by the prosecutrix. The instructions given to the jury were to the effect that if they found the crime had
The contention of counsel for the defense in that case, so held to be erroneous, is identical with the contention made by the attorneys for the accused in this case. They insist that because of the fact that the prosecutrix so positively named the date and place of the crime, while the evidence of several witnesses who undertook to account for all of the movements of the accused upon that Christmas night, which, if true, established his alibi, that therefore the jury were to be limited as indicated in the instructions which the court refused. They argue the case here upon this point as though the testimony demonstrates the alibi claimed for the accused, apparently overlooking the fact that the prosecutrix is sustained by several witnesses in her testimony that she was alone with the' accused at her home for some time and until a late hour upon the night referred to.
The other assignment of error is that the court erred in refusing to set aside the verdict upon the ground that it is contrary to the law and the evidence, and because of after-discovered evidence. Much is said as to the necessity of corroboration.
The statutes differ somewhat in the different States, but our statute, Code, section 4413, provides that no conviction can be had in such cases “on the testimony of the female seduced, abducted or detained, unsupported by other evidence.”
In Mills v. Commonwealth, 93 Va. 818, 22 S. E. 863, Keith P., said: “No case has occurred, it is believed, in which it has been necessary accurately to weigh and discriminate the character, quantity and degree of supporting testimony necessary to justify a conviction; nor is it the purpose of this opinion to undertake to indicate the precise amount of corroborating testimony which would in all cases be found sufficient. It is sufficient to say that it must be evidence which does not emanate from the mouth of the seduced female; that it must not rest wholly upon the credibility, but
' In Riddleberger v. Commonwealth, 124 Va. 785, 97 S. E. 311, Sims, J., said this: “To sustain such a conviction it is well settled that the corroborating evidence need not be direct but may be circumstantial, or partly direct and partly circumstantial evidence. Touching the promise of marriage, it is also well settled that the supporting evidence need be such only as the character of that matter admits of being furnished. As said in the case of Lasater v. State, 77 Ark. 68, 94 S. W. 58: ‘The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons. Hence, the supporting evidence possible in most cases is the subsequent admission or declaration of the party making it; or the circumstances which usually accompany the existence of an engagement of marriage * * *. The corroborating evidence need not be sufficient to convict independent of the testimony of the prosecutrix, but it is sufficient if- it supplies such facts or circumstances as tend to support such testimony upon the essential elements of the offense. Creighton v. State (Tex. Cr. App.), 61 S. W. 492. ‘And when there is other evidence fairly tending to support the prosecutrix upon facts essential to constitute the offense, it is for the jury to say whether she is corroborated.’ ”
That this is the accepted rule cannot be fairly doubted. It is not necessary in such cases that the supporting evidence be such as would be sufficient to convict without the evidence of the prosecutrix, but merely of such pertinent facts and significant circumstances as tend clearly to support her testimony, and which satisfy the jury that she is worthy of credit. If there is such other testimony so fairly tending to
Applying this rale to the testimony in this case, it is perfectly apparent that the prosecutrix is corroborated by the members of her immediate family and those in the best position to know the facts. The accused had been visiting her for eighteen months regularly. He generally came to see her every Sunday night, and sometimes two or three times during the week; drove with her in his automobile to Yerona, where she was at work, often, and to Staunton; and was alone with her at her home frequently at late hours in the night. Two of his companions testified that he claimed to have had illicit intercourse with the prosecutrix. It is contended that there is not sufficient corroboration because there were no incriminating letters, no public attentions, and no presents given her by the accused, but the absence of these circumstances, while unusual in such cases, should only be considered as affecting the weight of the other incriminating facts. The accused was a farm laborer and under twenty-one years of age. He was not highly educated. That he was not in the habit of writing letters to her is explained by the fact that he lived within a mile of her home and saw her so frequently. That he gave her no presents is explained by the fact that he had little money. The failure to prove incriminating facts which are usual,
Another ground of error is that there was after-discovered evidence, in support of which there was an affidavit produced from one who claimed to have seen the prosecutrix in a compromising position some time before her alleged seduction by the accused. The occasion was a bathing party at night, and a number of other young people were at the party, though not at the place of the occurrence. As to this it is unnecessary to repeat the rules governing such motions. The judgment of the trial court upon such questions has great
Upon the first trial' there was a conviction, which the trial court set aside, as was said in oral argument, because of after-discovered evidence. Upon the second trial the j ury were unable to agree; and upon the third and last trial he was again convicted. Under the circumstances shown, there was no error in the judgment of the trial court in refusing to set aside the second and last verdict of guilty.
We find no error and the judgment will be affirmed.
Affirmed.