Blair v. Commonwealth

• Decision Date: 11 June 1936
• Citation: 185 S.E. 900
• Parties: BLAIR. v. COMMONWEALTH.
• Court: Virginia Supreme Court

185 S.E. 900

BLAIR.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 11, 1936.

Error to Corporation Court, Part 2, of Norfolk.

James Blair was convicted of an attempted rape, and he brings error.

Reversed and remanded for a new trial.

Argued before HOLT, HUDGINS, GREGORY, CHINN, and EGGLESTON, JJ.

W. W. Venable, of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., of Richmond, for the Commonwealth.

GREGORY, Justice.

The accused was indicted, tried and convicted by a jury of an attempted rape and his punishment fixed at life imprisonment. The court pronounced judgment upon the verdict.

The scene of the attack in this case is at a point on Brambleton avenue in the city of Norfolk. At this point there is a vacant lot or field extending about 300 feet on said avenue and running back several hundred feet. This lot was considerably grown over with high weeds. The attack occurred on a December evening at approximately 8 o'clock. On the opposite side of the street was a drug store and just a short distance beyond was a filling station. Another filling station was down near the street intersection. There were other buildings on the same block and on the same side of the street upon which the attack occurred.

Lucille Speight, a white girl, 16 years of age was passing along Brambleton avenue at the edge of the vacant lot when she was seized from behind by the accused. He seized her by the throat and threw her to the ground at the edge of the sidewalk. Approximately one minute after the attack had begun, according to her testimony, an officer approached them, and as he approached he asked, "What is going on out there?" to which question the accused stated, "You know what she did to me?" to which the officer said, "I do not care what she did, get up." The accused then got up and ran west on Brambleton avenue and was pursued by the officer, and when he failed to stop upon being requested to do so, the officer shot at him, but he escaped. Several hours later he was found in bed in a rooming house, and, according to the testimony ofthe officer who found him, he was abnormal and appeared to be under the influence of some narcotic. He could not talk coherently.

The Attorney General in his brief concedes that at the time of the offense the defendant was intoxicated from the voluntary use of a kind of cigarette which is calculated to make one "high."

The prosecutrix was returning to her home when she was attacked, she having been to a store where she purchased some eggs. She testified that the accused did not strike her; that he did not attempt to pull up her dress, nor to put his hands upon her limbs or on any other part or parts of her body other than her neck. She further testified that he made no indecent proposals or advances to her, and that the only thing he did was to choke her.

After the case had been argued on the part of the commonwealth and the defendant, both sides having rested, and the court having fully instructed the jury, but before the case had been actually submitted to the jury, one of the jurors asked the court "if the jury could have the benefit of the defendant's testimony." Counsel for the accused then offered him as a witness, and he was subjected to cross-examination. He testified that some time prior to the evening of the attack, he had received from a friend, who worked on a New York boat, some brown looking substance that resembled tobacco, and he was told by his friend that it would make him "high" or put him to sleep. He further testified that just before the attack he had used some of this substance and lost consciousness, and that he did not remember anything about the occurrence; that he did not regain consciousness until the following morning in the hospital.

Article 5 of the Amendments to the Constitution of the United States and section 8 of article 1 of the Constitution of Virginia, provide that one accused of crime shall not be compelled in any criminal proceeding to give evidence against himself, and section 4778 of the Code of Virginia, in part, provides that "in any case of felony * * * the accused may be sworn and examined in his own behalf * * * but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by the prosecuting attorney."

The object of the statute is to afford the accused an opportunity to testify in his own behalf if he so desires. It is not intended to deprive him of his right to deny his guilt and remain silent. The statute extends to him a privilege which had been theretofore denied. Under it the accused may exercise his privilege and testify, or he may stand mute. His liberty of choice must be fully accorded him, and must not be the subject of comment. Price v. Com....