Bailey v. Commonwealth

Decision Date17 June 1886
Citation82 Va. 107
CourtVirginia Supreme Court

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 says the " Natural abhorrence of crime diverted the attention of jury," etc., from a proper consideration of the evidence. See also, 3 Wharton & Stelle Med. Juris., sec. 609, as to necessity for medical testimony.

Second. The testimony does not prove that the rape was committed. Commonwealth v. Thomas, 1 Va. Cases 307. In this case there was no penetration. He, prisoner, " brought his private parts in contact with her private parts, and forced her." Desty Crim. Law, sec. 133, a; Mayo's Guide, p. 536, Virginia Criminal Laws, (Matthews) p. 166, sec. 15 and note 8; Wharton & Stelle Med. Juris., sec. 612. " Forced her" has no legal signification; it means nothing. He may have " forced her" to do one thing or another. It is too general, too indefinite for a conviction. The testimony of the prosecutrix was uncorroborated. She and one C. H. Collins were the only two Commonwealth witnesses offered in chief. Four other witnesses were introduced to reinstate character of prosecutrix after its effectual impeachment. This testimony tends to disprove rape, and proves voluntary coition--intercourse. See Webster Un. Dictionary, p. 705.

In conclusion, Lord Hale, in his 1st Pleas of the Crown, 635, said, " Rape is an accusation easily made; hard to be proved, and still harder to be defended by one ever so innocent.

R. A. Ayers, Attorney-General, for the Commonwealth.



The charge is that in the night time the plaintiff in error entered the bed of his fourteen year old step-daughter, which was situated in a room in which three other small children were sleeping, the largest eight or ten years old; that there were no other persons in the house, the wife of the prisoner and the mother of the prosecutrix being absent at a party in the neighborhood, to which, with an older daughter, she had been escorted by her husband, the prisoner; that the prosecutrix forbid the prisoner from getting into bed with her, but made no further resistance; " that the prisoner held her hands, and brought his private parts in contact with her private parts and forced her; " that the children in the room were not awakened, a person living one hundred yards off heard nothing of it, and another neighbor one-fourth of a mile away heard no noise. The mother and older sister returned from the party in the neighborhood that night, and heard nothing of it until, six days afterwards, the prosecutrix told her mother. The magistrate, who issued the warrant, says that the prisoner confessed to him that he had had intercourse with his step-daughter, that she was no kin to him, and he wanted to be first.

The atrocious character of the charge made, and the revolting circumstances attending it, cannot but excite the indignation, and receive the condemnation, of every person. The charge, however, is rape, and it is necessary to consider, under the law and in the light of the decisions, whether that charge is made out by the evidence and sustained by the proofs.

Rape is the having of unlawful carnal knowledge by a man of a woman, forcibly and against her will. Our statute provides that if any person carnally know a female of the age of twelve years or more, against her will, by force, he shall be, at the discretion of the jury, punished by death, or confined in the penitentiary not less than ten nor more than twenty years. This offence may be committed as well on a woman unchaste, or a common prostitute, as on any other female. In matter of evidence, however, want of chastity may, within recognized limits, be shown as rendering it more probable that she consented.


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