82 Va. 107 (Va. 1886), Bailey v. Commonwealth

Citation:82 Va. 107
Opinion Judge:LACY, J.
Attorney:F. S. Blair, for the plaintiff in error. R. A. Ayers, Attorney-General, for the Commonwealth.
Judge Panel:LEWIS, P., and RICHARDSON, J., dissented.
Case Date:June 17, 1886
Court:Supreme Court of Virginia

Page 107

82 Va. 107 (Va. 1886)




Supreme Court of Appeals of Virginia.

June 17, 1886

Error to judgment of circuit court of Giles county refusing writ of error to judgment of county court, sentencing Joseph A. Bailey, whom the jury had found guilty of rape, to ten years confinement in the penitentiary. Prisoner's motion for a new trial being overruled, he excepted and obtained a writ of error and supersedeas from one of the judges of this court.

Opinion states the facts and the points raised.

F. S. Blair, for the plaintiff in error.

First. The verdict is contrary to the evidence, as the prosecutrix, from the facts and circumstances of her own statement, cannot be believed.

She made no alarm or outcry at the time of pretended rape, although there were three children (her brothers and sisters) sleeping in the same room, one of whom was eight or ten years old. Why did she not arouse them? She made no alarm or outcry, although a neighbor's house was in sight, and within 100 yards of the house where she claims to have been violated. She did not tell her mother of the rape when latter came home on same (Saturday) night, from Lute Morgan's. She did not tell her mother of it until the next Friday, nearly one week after the pretended violence. 3 Greenleaf on Ev., sec. 212. There was no physical evidence of rape; no proven marks of violence on the person. See 3 Wharton & Stelle, Med. Juris., secs. 42, 249. It is proved by James Shaver that C. H. Collins " egged" her to make the charge--and that she had nothing against Bailey, and there would have been nothing of this charge but for said Collins. The general bad character of prosecutrix, for truth and veracity, is proven by five witnesses. She stated, on cross-examination, that she had not told Shaver, on the south side of the top of Peter's mountain, that she had nothing against Joseph Bailey, & c., & c., while James Shaver swears that she did tell him. She stated that James Shaver never brought her back from West Virginia, but that Samuel Shaver did. She is impeached by both James and Samuel Shaver. William Maser, a witness for the Commonwealth, impeaches her character for virtue-- that " he had knew things detrimental to her character," after the charge against Bailey. From her own statement, on cross-examination, she did not resist Bailey. " She stated that all she did to resist Bailey was to tell him not to get in bed with her."

The following Virginia cases next show that Virginia courts are not disposed to convict of rape, upon the sole evidence of the prosecutrix, if the circumstances are unfavorable and suspicious. Broggie's Case, 10 Gratt. 722. In this case the court says that the fact of prosecutrix making no outcry or complaint, is unfavorable, and the charge is presumed to be an afterthought. Boxley v. Commonwealth, 24 Gratt. 651; Christian v. Commonwealth, 23 Gratt. 954; The People v. James Hamilton, 2 Green's Criminal Law Report, 432. See Law v. Commonwealth, 75 Va. 890, where court...

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