Barber v. Commonwealth

• Citation: 30 S.E.2d 565,182 Va. 858
• Parties: BARBER . v. COMMONWEALTH.
• Decision Date: 22 June 1944
• Court: Supreme Court of Virginia

30 S.E.2d 565

182 Va. 858

BARBER .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 22, 1944.

BROWNING, J., dissenting.

Error to Hustings Court of Richmond; Jno. L. Ingram, Judge.

Nathan T. Barber was convicted of attempted rape, and he brings error.

Reversed and remanded.

Before CAMPBELL, C. J., and HOLT, GREGORY, BROWNING, EGGLE-STON, and SPRATLEY, JJ.

Hiram M. Smith, of Richmond, for plaintiff in error.

J. M. Perry, of Staunton, for defendant in error.

HOLT, Justice.

The defendant, Nathan T. Barber, has been convicted of an attempted rape. The prosecuting witness is an unmarried woman, twenty-four years old, who works in a Richmond bank and has completed her course as a Nurses' Aide. The offense charged was committed on May 26, 1943. After banking hours on that day, she "went over to a funeral home at 25th and Venable streets to see a man's body whom I used to go with." After that she reported to the Medical College of Virginia Hospital for duty, and at 10:20 she left the hospital and crossed the street to a restaurant and beer parlor, frequented by the medical profession and called "The Skull and Bones." She was tired and seated herself in a booth there and ordered a glass of beer. She saw the defendant standing by the beer counter and noted that he had ordered two glasses of beer. He came over to her booth and asked her if he might sit down. She consented; he did so, and then followed such casual conversation as might be expected between strangers. He then asked her if she would have some champagne, and she replied that she did not drink champagne, but told him that she was tired and "wanted to go home and take a bath, and go to bed." He then ordered two beers--one for her and one for himself-- and these he paid for, although she offered to pay for that which she drank. He then offered to take her home; that offer she refused. He asked her if she went home by bus or street car, and said: "I can take you there." She replied: "All right, thank you." He then said: "How about my walking with you?" She answered: "That will be perfectly fine, will be perfectly all right." They then left this restaurant together and walked towards Broad street. He suggested that she go in his car, to which she answered: "No, I am very sorry, " and said that she wanted to go straight home. He replied: "I will take you straight home." She again declined, saying: "No, I will go home on the bus, thank you; it is getting late." They parted as they reached Broad street, she walked west on it and was between Ninth and Tenth streets when a car drove up and stopped. She recognized the defendant, who had "hollered" and stopped. He told her: "Don't be foolish, get in the car, and I will take you straight home." "I said 'No'." He answered: "Well, you certainly have succeeded in insulting me." She denied having intended to do anything of that sort. He again said to her: "Well, come on and get in the car and don't be so foolish and I will take you straight home." She answered: "All right, " and got in the car. They went west on Broad street and turned south to Monument avenue. He asked her to sit over close to him and tried to put his arm around her. "I * * * told him to put both hands on the wheel, but I still hadn't any idea what he had in mind."

She lived on Stafford avenue, and when she neared that street, she told him to turn at the next corner. Thinking that he did not have a strong grip on the steering wheel, she attempted to swerve the car, but his grip held. They proceeded up Monument avenue to Chantilly street, where he turned to the north and stopped between Monument avenue and Grace street, more than a mile beyond her home. It was then twenty-two minutes past eleven. When the car stopped, he did everything he could to induce her to yield to his desire and put his hands upon her person under her skirt. She got out of the car at least twice, when he brought her back. There is no evidence that he attempted by force to accomplish his purpose. That he did desire to have improper relations with her is perfectly plain, and that he concedes. From 11:22 until 1:45 this situation continued. It was while he was making ineffectual efforts to induce her to accede to his desire that, by way of protest to her attitude, he said that she was "inhuman;" to which she replied: "Most people usually think I am inhuman."

At 1:45 a police car drove up. At that time she was out of the car; Barber was in it. When this car came up, she asked who was there and was told that they were police officers, and she said: "Thank God you came here now." Her shoes, stockings and clothes were muddy, and Barber's shoes were muddy also. Barber was arrested, taken to the police station, and afterwards indicted.

The officers in the police car on their way west had seen the defendant's car parked in this place but did nothing because they said that it was not unusual to see cars parked there at that time. And it was upon their return, more than an hour later, that they drove up to see what it was all about.

When this case came on for trial, the Commonwealth offered to prove that thedefendant had been guilty of a like offense with another woman, had been indicted therefor, and that this indictment was still pending. The attorney for the Commonwealth said:

"If Your Honor please, I am not going to and never have tried to mislead Your Honor and I am certainly not going to try to mislead you now. It is very doubtful as to whether this sort of evidence would be admissible to prove an independent offense, although it was of the same nature. I am not here to tell you that the law is well settled but when he, on cross examination, says that this girl gave him a come-hither look and undertakes to show to that jury that it was on an invitation from her that he took her out, that she was the moving spirit in it all, I think I would have a right to show that on a similar instance he had picked up another one and carried her out and tried to do the same thing that he did •to this girl. I will admit that the law is very doubtful, although it may be you could prove the independent offense where it was alike and where the question of intention and motive was involved, but I never have tried to bring in a proposition that would mislead Your Honor in the law and I am not going to do it now "but I think it is my duty, if that evidence is admissible, in view of the defense that this man has put up here, to try to get that evidence in if I can."

The presiding judge in the trial court said:

"For the purpose of showing intent as to which certain acts were done in this case but there is plenty of Virginia law as to intent in robbery and larceny and murder and all of those things but it hasn't come around to rape. * * * "

"I am going to let the Court of Appeals pass on the question of whether or not it should come out and I am not going to have one of these rapers in the city getting off one at a time and by combining five of them he doesn't get off. I am not going to be a party to that."

Whereupon the accused made this pertinent inquiry:

"Well, Judge, Your Honor, and Judge Hadden, I want to know if I am being tried on both of these cases at the same time?"

The force of this inquiry is shown by the fact that much of the record here is taken up by evidence of what occurred there. It was admitted with a wealth of nauseating detail. To the charge in that case this defendant said that the situation was this: That the woman expressed a willingness to accede to his desire if he would give her ten dollars; this he would not do, and she got out of the car and left.

It would be unlooked for and curious if we sustained a judgment which rested, in part, at least, on collateral testimony that was afterwards repudiated in a trial to which it properly belonged.

In 44 Am.Jur. (Rape) section 79, it is said:

"The courts universally refuse to admit evidence of the commission of other and distinct crimes where such evidence is not otherwise relevant, and in the application of this rule it is well settled on a prosecution for rape that evidence of another rape or other sex crime committed at a different time and on of against another person, and having no connection with the crime charged, is not admissible. This has been held to be the rule applicable when the prosecution alleges a violation of the age of consent law, or statutory rape, as distinguished from the common-law offense. The prosecution may not show that the defendant has had sexual intercourse with other young females, or that he has committed other sex crimes and immoral acts. Evidence that the defendant has committed other nonsexual crimes is also inadmissible."

Exceptions to this rule are noted in this paragraph. In commenting on them, it is said:

"There must be a causal relation or logical and natural connection between the two acts, or they must form parts of one transaction."

In Wigmore on Evidence, 2d Ed., Vol. 1, p. 664, it is said:

"The committing of a single previous rape, or rape-attempt, upon another woman may not in itself indicate such a design, " and to support that view careful attention is invited to State v. Lapage, 57 N.H. 245, 289, 24 Am.Rep. 69, opinion by Cushing, C. J. After quoting at length from it, he goes on to say: "Nevertheless, a single previous act, even upon another woman, may, with other circumstances, give strong indication of a design (not a disposition) to rape."

We know of no case in Virginia in which, on trial for attempted rape, evidence of another attempted rape of an-other woman has been admitted; but the principle involved has frequently been passed upon. The leading case on this subject in Virginia is Walker v. Commonwealth, 1 Leigh 574, 28 Va. 574. A woman was indicted for stealing a watch. Proof was offered that she had at another time stolen a coat. She was convicted and that conviction was set aside. Judge Brockenbrough, in the course of a well-considered opinion, said:

"* * * but it is an...