Brown v. Com.

• Decision Date: 15 January 1968
• Parties: Grover C. BROWN v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 663

158 S.E.2d 663

208 Va. 512

Grover C. BROWN v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Jan. 15, 1968.

Samuel Goldblatt, Lester E. Schlitz, Portsmouth, for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

EGGLESTON, Chief Justice.

On November 22, 1965, upon the complaint of his wife, a warrant was issued charging Grover C. Brown with unlawfully and feloniously committing fornication with his daughter, Bonnie D. Brown, in violation of Code § 18.1--191 (Repl. Vol. 1960). ¹ After a preliminary hearing the case was sent on to the grand jury which found an indictment charging him with that offense. Upon arraignment in the trial court the defendant pleaded not guilty and was tried by a jury which found him guilty and fixed his punishment at confinement in the penitentiary for ten years. The defendant's motion for a new trial was overruled and judgment entered on the verdict. We granted the defendant a writ of error.

On appeal the defendant contends that (1) the evidence is insufficient to support the verdict; (2) the trial court erred 'in failing to grant a mistrial when the Commonwealth called the defendant's wife to the stand;' (3) the court erred in admitting certain evidence over the objection of the defendant; and (4) the court erred in failing to grant a mistrial because of the improper argument of the attorney for the Commonwealth before the jury.

In November, 1965 the defendant Brown, his wife and four daughters lived on Bruce Place in the city of Portsmouth. The eldest of the daughters was Bonnie, who became twenty-one years of age on August 12, 1965. Bonnie testified that on Sunday, November 21 of that year, she and her six-year-old sister went with their father to Camp Civitan on a service call. After the service call, which lasted about two hours, the father took the other daughter home and asked her (Bonnie) to go with him to his business office, which she did. He told his wife that they were going to the shop and 'do some work on the books.' At that time Bonnie was doing clerical work for her father who operated a heating and air-conditioning business in Portsmouth. The place of business consisted of an office in the front and a workroom in the rear. She further testified that upon their arrival at the shop, between 1:00 and 3:00 P.M., her father took her into the workroom and had sexual intercourse with her on a worktable. She did not protest or object to such intercourse but did so voluntarily, because, she said, from past experience 'I knew that I had to * * * or something would happen to me.'

Over the objecttion of the defendant, Bonnie further testified that her father had been having sexual intercourse with her since she was twelve years old and that this continued until November 21, 1965. When asked, '(D)id any condition ever arise as a result of this relationship between you and your father?' she replied, 'Yes, I had a baby' in 1962. During this relationship with her father she said that he forbade her having 'dates' with young men.

On cross-examination Bonnie admitted that not until November 22, the day following the last act of intercourse did she tell her mother of the relations between her and her father. She said that she had refrained from making this disclosure because of the 'threats that my father had made to me.' Nor did she make a disclosure of such relations to her grandmother or other relatives or friends, some of whom lived nearby.

Immediately after the incident on November 21, she told her father that she wanted to leave home and go to live with a friend in Richmond, to which he at that time agreed. But on the next day, when she again discussed with him in the presence of her mother the subject of leaving home, he objected, became very angry and slapped her in the face, knocking her glasses across the floor. He struck her, she said, 'repeatedly' and 'brutally.' The mother intervened and told the defendant that if Bonnie left home she (the mother) would go with her. Following this altercation on November 22, Bonnie swore out a warrant against her father charging him with assault. On the same day the defendant's wife swore out the warrant charging him with incest with his daughter.

Bonnie's mother, the wife of the defendant, was called as a witness for the prosecutrix but on objection of the defendant was not permitted to testify. More of this later.

The defendant, testifying in his own behalf, said that he was forty-four years of age and for several years had conducted a heating and air-conditioning business in the city of Portsmouth. He said that on November 21, 1965 he took Bonnie and her sister with him on a service call to Camp Civitan which was completed about 3:30 P.M. He denied having taken Bonnie to his place of business on that day and having sexual relations with her there. He further denied that he had previously had sexual relations with her. He knew that she had given birth to a child 'in a home' when she was about eighteen years of age, but made no charge that this was the result of her relations with any other man. He denied having restrained Bonnie in any way from going with young men or having threatened her because she had done so. He admitted having had an altercation on November 22 with Bonnie and her mother about Bonnie's leaving home. During that altercation, he said, Bonnie called him 'a dirty bastard' and in resentment therefor he struck her a single time with his hand. He denied that he brutally and repeatedly struck her, as she testified. He testified that because of the incidents which have been related he was no longer living with his wife and daughters but was residing with his mother.

Several witnesses testified that the defendant had a good reputation for truth and veracity in the community.

We think the sufficiency of the evidence to sustain the verdict and judgment was a question for the jury. They have accepted the testimony of the prosecutrix which, if true, shows that her father committed fornication with her in violation of the statute. Code § 18.1--191.

The trial court instructed the jury that if they believed from the evidence that the prosecutrix 'voluntarily participated in the offense charged to the defendant * * * she thereby became an accomplice' and that if an accomplice her testimony 'ought to be received with great caution by the jury.'

In this State it is well settled that while the evidence of an accomplice should be received and acted upon by a jury with great caution, the jury may, if they are satisfied of the guilt of the accused, convict him upon the uncorroborated testimony of such an accomplice. Watkins v. Commonwealth, 174 Va. 518, 526, 6 S.E.2d 670, 673 (1940); Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 (1945); Wright v. Commonwealth, 196 Va. 132, 138, 82 S.E.2d 603, 607 (1954). However, in the present case, the birth of a child, which the prosecutrix attributed to her relations with her father, is corroborative of such relationship.

As has been said, the attorney for the Commonwealth called the defendant's wife as a witness for the prosecution and upon objection she was not permitted to testify. Although there was no motion by the defendant for a mistrial, he now argues on appeal that such mistrial should have been ordered.

Code § 8--288, as amended (Repl. Vol. 1957), provides in part: 'In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled, nor, without the consent of the other, Allowed to be called as a witness against the other, except in the case of a prosecution for an offense committed by one against the other or against a minor child of either * * *.' (Emphasis added.)

In Wilson v. Commonwealth, 157 Va. 962, 968, 162 S.E. 15, 16--17 (1932), we pointed out that this statute has placed upon the Commonwealth 'the burden of first obtaining the consent of the accused husband before it will be allowed to call the wife as a witness against him;' that the evil sought to be corrected was the 'intentional effort of the attorney for the commonwealth to force the accused to object to the introduction of his wife as a witness against him, and thus, perhaps, have the jury place upon him the odium of seeking to prevent a fair investigation of the transaction.' We further pointed out that when an accused is 'of opinion that the wilful misconduct of the representative of the commonwealth has prejudiced the jury against him,' he should 'immediately move the court to discharge the jury and grant him a new trial,' and that unless he does so such incident is waived. 157 Va. at 970, 162 S.E. at 17.

In the present case the conduct of the attorney for the Commonwealth in calling the wife of the defendant to the stand was in plain violation of the statute and was ground for a mistrial. Indeed, in its oral opinion overruling the motion for a new trial, the trial court stated that it would have granted such a motion had it been made, but not having been made, the incident was waived and could not be raised after the unfavorable verdict by the jury. We agree with this ruling. Wilson v. Commonwealth, supra, 157 Va. at 970, 162 S.E. at 17.

We do not agree with the contention that the trial court erred in admitting in evidence the testimony of the prosecutrix that her father had had sexual intercourse...