Boxley v. Commonwealth
| Decision Date | 21 January 1874 |
| Citation | 65 Va. 649 |
| Parties | BOXLEY v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. In a prosecution for rape the verdict and judgment of the court of trial set aside by the appellate court, on the ground that the evidence did not sustain the verdict.
2. The prisoner entitled to a new trial on the ground of surprise the testimony of the principal witness, as given in court varying materially from that given before the committing justice; and the justice, who was a physician, having been called away at the time of the trial.
At the July term of the County court of Halifax, Wilson Boxley colored, was indicted for a rape upon Martha H. Spencer. At the same term of the court he was brought to the bar, and being arraigned pleaded not guilty, and on his motion the case was continued. He was thereupon remanded to the Circuit court of the county for trial at its September term; and on his motion he was allowed to give bail for his appearance at the Circuit court.
At the September term of the Circuit court Boxley appeared, and upon his trial was found guilty by the jury, who ascertained the term of his imprisonment in the penitentiary at ten years. The prisoner thereupon moved the court to set aside the verdict and grant him a new trial on the ground of surprise and because the verdict was contrary to the evidence; and he filed his own affidavit and the affidavit of H. B. Melvin, the justice who committed him, to show that the principal witness had varied materially in her evidence before the jury from her statements before the committing justice.
The court overruled the motion and sentenced the prisoner in accordance with the verdict, and the prisoner excepted; and upon his application a writ of error was awarded. The facts are sufficiently stated in the opinion of the court.
Davis, for the prisoner.
The Attorney-General, for the Commonwealth.
Several objections have been taken by the counsel for the plaintiff in error to the judgment of the court below in this case, involving questions of both law and fact, and have been argued with much learning and ability; but in the view taken of the case by this court we deem it necessary to consider only the questions arising under the last assignment of error. After the jury had rendered a verdict of guilty and fixed the term of the prisoner's confinement in the penitentiary at ten years, he moved the court to set aside the verdict and award him a new trial on the following grounds:
1st. Because the verdict had been obtained by surprise.
2d. Because it was not sustained by the evidence.
The court overruled the motion and sentenced the prisoner to ten years' confinement in the penitentiary. To this ruling the prisoner excepted, and prayed the court to certify the facts proved on the trial, which was done accordingly.
We are of opinion that the Circuit court erred in refusing, under all the circumstances of this case, to grant the new trial.
Without recapitulating or very critically analyzing the testimony, we are compelled to say that the evidence adduced to establish the felonious act--the corpus delicti --is, to say the least of it, of a very doubtful and inconclusive character. It consists exclusively of the statements of the person upon whom the offence is charged to have been committed, and is certified by the court as follows: " On the day of June 1873, it being Sunday, about 12 o'clock M., Miss Martha Spencer was at the spring (which is about one hundred yards from her father's house); had filled her bucket and was sitting down on a rock at the spring; while sitting there some one came up behind her and seized her by the shoulders, pulled her over backwards, her bonnet falling over her eyes; the person making the attack spoke to her in a low tone and told her not to make a noise" (a suggestion which for some reason she seems to have duly respected). " " She screamed once" (whether in a similar tone or not does not appear);
This is her own account of the alleged criminal act, and is all we have directly on that subject. She proves no other violence than enough to draw her backwards by the shoulders from her seat, and to hold her bonnet over her face. Her person was examined by two physicians, and whilst they both testified that it was apparent that she had had rexent sexual intercourse, they also proved that there was nothing to indicate that it had been accomplished by violence; " that no bruises were found about the face, arms or person of the prosecutrix, except a small, almost imperceptible, bruise under each knee."
It was also proved that Miss Spencer was " a large, stout woman," and the accused was a " medium -sized man, about twenty-three years old."
Can we say upon such testimony that the criminal act has been established? It would require a large degree of charity and credulity to believe that at noonday, within one hundred yards of her father's house and within two or three hundred yards of the house of a neighbor (Wm. Spencer), a rape was perpetrated on this large and stout woman, with both her arms perfectly free, by a medium -sized man, who neither threatened her with violence nor did anything to disable her, and who, from her own account, had...
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Yessen v. State, 28601
...of the court is, therefore, contrary to law. Hutchins v. State, 1894, 140 Ind. 78, 84 et seq., 39 N.E. 243. See also Boxley v. Commonwealth, 1874, 24 Grat. 649, 65 Va. 649. Supporting the third reason for new trial--newly discovered evidence,--appellant filed and presented three affidavits ......