Brd.Dus v. Commonwealth

• Decision Date: 20 November 1919
• Citation: 101 S.E. 321
• Parties: BROADDUS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

101 S.E. 321

BROADDUS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 20, 1919.

Error to Circuit Court, Page County.

John Broaddus was convicted of an attempt to commit rape, and he brings error. Affirmed.

In this case the accused was convicted of an attempt to commit rape under an indictment which, omitting its formal beginning, is as follows:

" * * * John Broaddus heretofore, to wit, on the 2d day of November, 1918, in the said county, with force and arms, in and upon one Nellie Richards, a female of the age of 18 years, violently and feloniously did make an assault, and her, the said Nellie Richards, feloniously did attempt to ravish and carnally know against her will and by force, against the peace and dignity of the commonwealth."

Upon considering the evidence under the statutory rule on the subject, the material facts bearing upon the issues in the case as shown by the record are as follows:

The prosecutrix is a white girl, who was 18 years of age at the time of the alleged offense, resided at her father's home in the country, about four miles from Luray, and had never seen the accused, who is a colored man, until Thursday, the 31st of October, 1918, when he came to her father's house, saying that he wanted to buy some scions of the father, who was a fruit tree agent; that the father was not at home at the time, and the mother of prosecutrix so told the accused, and the latter stated that he would return on Friday or Saturday, next following, being the 1st or 2d of November; but the mother then told him that neither she nor the father would be at home on either of those days, and suggested that the accused come back on Sunday, November 3d, and added that on Saturday, November 2d, she, the mother, and the father had to go to Luray to fill out the questionnaire of the father; that accused left stating that he would return on Sunday; that while at the home aforesaid, on Thursday, the accused said something about a wrist watch he wanted to sell, and he showed the mother and some of the children present at the time a little bracelet watch with no bracelet on it; that the accused did not show the watch to the prosecutrix or talk to her concerning it on that occasion, and the mother told the accused that she did not want to buy a watch; that the accused told the mother and the prosecutrix that he had a ring at home, but did not have it with him, but would bring it when he came the next time.

According to the testimony of the accused, which is not controverted by any other testimony in the case, he had an arrangement with a jeweler in Pittsburgh by which he could sell watches and rings and receive a premium on each sale made, and also, ac-cording to the testimony of the accused, on Saturday morning, November 2d, the father of the accused wanted some hog feed, and the accused asked and obtained permission of his father to use the horse and buggy of the latter to go to the home of Mr. Richards, the father of the prosecutrix, for the purpose, as testified by the accused, of purchasing the scions of Mr. Richards and of coming back by the mill and bringing the hog feed. The accused admits that he had been told on Thursday, as aforesaid, that Mr. Richards would not then be at home, as both he and his wife had to go to Luray as aforesaid, but he explained his going to Mr. Richards' house that day for the purpose claimed by stating that he went by Luray and took the road from Luray to Mr. Richards' home upon which he would naturally expect to meet Mr. Richards in his coming to Luray; that on not meeting Mr. Richards he went on to his home; but he does not explain why he did not wait at Luray to see Mr. Richards there, or why he did not meet Mr. Richards on the way.

On Saturday morning, November 2d, Mr. Richards and his wife left home about 9:30 o'clock for Luray for the purpose above mentioned, and were away from home until about 6 o'clock that afternoon, when they returned. They left at home the prosecutrix and six younger children—Claude, aged 10, and five others of the ages of 8, 6, 3, and 2 years, and the youngest of 13 months. The house consisted of five rooms—a large sitting room and kitchen downstairs, with a door between them and another door, which was the entrance door from the front of the dwelling. That about 9 o'clock of the morning of the Saturday mentioned the accused came, while the prosecutrix and the six younger children were sitting in the large room downstairs. That it was a cold day, and there was a fire in the large room aforesaid when the accused came. That the entrance door of this room was shut and the curtains down, but the blinds were not shut. That Claude, the 10 year old brother of the prosecutrix, looked out of a window and saw the accused as he drove up to the house in the buggy aforesaid and went outdoors to meet him, did meet him, returned with the accused to the house, opened the entrance door aforesaid, and the accused came on in along with Claude. That the accused shut the door behind himself and Claude and took a seat by the fire, where the prosecutrix and the children aforesaid were sitting. That the accused showed the prosecutrix the wrist watch above mentioned, which he said cost $23, and which he said he wanted to sell her, and stated he would let the prosecutrix have it cheaper than that price. That the accused asked Claude to get him a tar rope, which Claude got, but the accused told him that that would not do, and asked Claude to get a twine string, which he did, and the accused then said that that would not do, and that the prosecutrix then herself got him a thread. That the accused then said that he wanted to measure the arm of the prosecutrix for a wrist watch, and her finger for a ring. That the accused had a ring in his pocket which he showed her. That the accused measured the finger of the prosecutrix and tried to measure her wrist. That she refused to let the accused measure her wrist, and told him that she was unable to buy the watch. That the accused offered to give her the watch, and then offered to give her the watch and the ring, "if she would go in the other room with him." That she told him that she was "not going." That thereupon the accused said, "You will go, or I will kill you." That the accused then first took hold of the arm of the prosecutrix, and then caught her around the waist and pulled her off the chair or bench on which she was at that time sitting, lifted her up, and started with her towards the door entering the kitchen, saying that he would take her into that room if he had to carry her, at the same time getting out his knife and saying he would "kill them all, " or "had a notion to kill all of them." That the accused had not turned her loose when he got out the knife. That thereupon the prosecutrix threatened to call her uncle (who lived about 130 yards away, his being the nearest residence to the Richards home). That when the prosecutrix threatened to call her uncle she succeeded in jerking away from the accused. That the "only way" the prosecutrix "got rid of the accused was by telling him that she was going to call her uncle." That "the accused then let her go." That the accused stayed in the room "a little while longer, and then grabbed his hat and ran." That "when he left he asked [the prosecutrix] not to tell her father what had happened." That when he got to the door he told Claude that he "had better go. with him, " and asked Claude to go with him to Simon Foster's (who lived some 150 to 200 yards away from and in sight of the Richards home) "to help him sell a watch to Foster's wife and daughter." That the accused said that "if he did not make a deal at Simon Foster's there would be bloodshed." That Claude went with the accused up to Foster's fence. That after some time the accused came back down by the Richards home, and "hollered in at the window, and requested Nellie [the prosecutrix] and the others not to tell their father what had happened."

That the prosecutrix was not hurt, and "did not scream or hollow, or did the children scream, but that they were terribly scared when he [the accused] * * * put his arm around her waist. * * * " That the prosecutrix was excited and nervous, and went upstairs and went to bed as soon as the ac-cased left, and remained there until about 1 o'clock, when she got up to get dinner. That the reason she did not go to her uncle's home was "on account of the children, and because her uncle's family had the 'flu.' That she was so frightened that she did not know what to do."

That two of prosecutrix's brothers, aged 12 and 13, respectively, came home about 12 o'clock from cutting wood and remained the rest of the day.

That the first complaint the prosecutrix made to any one was to her mother, which was immediately upon the entrance of the mother into the home on her return from Luray, which was on the afternoon of the day of the occurrence as aforesaid, and next to her father as he, a short while thereafter, came upon the porch.

When arrested, on being informed with what he was charged in the warrant, the accused denied that he was at the Richards home on the Saturday aforesaid, but afterwards admitted that he was there.

The accused testified in substance that he did ask the prosecutrix to go with him into the kitchen on the occasion upon the Saturday above mentioned, and that he did this with the purpose and intent to have carnal intercourse with her. It should, however, be also said, perhaps, although, of course, we cannot regard it as true under the rule under which we must consider the evidence, that the accused in his testimony on the trial in the court below denied that he put his arm around the waist of the prosecutrix, or that he had any knife with him, or that he at any time used or intended to use any force, or to do anything contrary to the will of the prosecutrix; and he made other statements, some of which corroborated and some of which were in conflict with the evidence for the...