Buzzard v. Commonwealth

• Decision Date: 16 November 1922
• Citation: 114 S.E. 664
• Parties: BUZZARD. v. COMMONWEALTH.
• Court: Virginia Supreme Court

114 S.E. 664

BUZZARD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

Error to Circuit Court, Augusta County.

Charles Buzzard was convicted of attempted rape, and he brings error. Reversed.

Timberlake & Nelson and Curry & Curry, all of Staunton, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

KELLEY, P. The charge in the indictment In this case is that on January 23, 1921, the defendant, "Charles Buzzard, in and upon one Alto Robertson, a female child under the age of 15 years, to wit, of the age of 13 years, violently and feloniously did make an assault; and he the said Alto Robertson, then and there, to wit, on the day and year aforesaid, unlawfully and feloniously, did carnally know and abuse, against the peace and dignity of the Commonwealth."

The verdict of the jury was as follows:

"We, the jury, find the accused, Charles Buzzard, guilty of attempted rape of Alto Robertson, under the indictment, with her consent, and that she was over the age of 14 years and under the age of 15 years, and fix his punishment at three years in the state penitentiary."

The trial court refused to set this verdict aside, and pronounced sentence in accordance therewith.

There are numerous assignments of error, several of which are substantially identical. In our view of the case only three of them need be considered.

1. The first question which confronts us relates to the admission in evidence of a family Bible, and arises under the circumstances now to be related: The commonwealth proved, and the defendant admitted, an unsuccessful attempt on his part to have carnal intercourse with the girl. It was reasonably clear from the evidence, and the jury found, that the attempt was made with her consent. The vital question was as to her age. If she was 15 or more, the defendant was not guilty of any crime embraced in the indictment. If she was less than 15, then the gravity of the offense, and the maximum and minimum punishment, depended upon whether she was under the age of fourteen years. This issue concerning her age, as well said by counsel for the defendant, "was the storm center of the case." The oral testimony for the commonwealth, given by the prosecutrix and her parents, was that she was born in March, 1907, and was therefore between 13 and 14 when the attempt was made. The public school census, as stated by the county school superintendent, whose testimony does not appear to have been objected to, and which was properly admissible to corroborate her and her parents, showed that her age was recorded at school, as of May, 1920, thus: "Alto Robinson, thirteen years." The testimony for the defendant, on the other hand, was that the girl was born in March, 1905, and was therefore over 15 when the alleged crime was committed. No witness on either side fixed her age at 14.

On cross-examination, the prosecutrix testified that her age was written down in the Bible, and in this connection said:

"Every time my birthday comes, Papa says, 'This is your birthday.' You can look in the Bible."

So, also, her mother, on cross-examination, said:

"Her father keeps their (the children's) ages, as he can figure. He puts them down in the Bible."

She also testified that she could not read, and that when Mrs. Glover, who was taking the census in February, 1920, called at her home, she gave Mrs. Glover the Bible, and that her daughter's age was then determined from that source.

Mrs. Glover's testimony was to the effect that the girl's mother gave her the Bible to enable her to record Alto's age, that the Bible showed the date of birth as being in March, 1905, and that following her rule of counting from the last birthday and recording the completed year, she noted the girl's age as 14 in February, 1920. This would have made her past 15 when the alleged crime was committed.

On direct examination, J. L. Robinson, father of the prosecutrix, had testified that he was certain she was born in 1907. On cross-examination he was asked how he knew that fact, and his answer was this:

"I got her age down. I got it in the Bible wrong, and told the grand jury, and will tell you, that it was 1907. I put the ages down on a piece of paper, and when it got so I couldn't read them plain, I transferred them to the Bible. I put her age down wrong in the Bible. I put it down 1906; it ought to be 1907."

At the conclusion of all the evidence on both sides, the commonwealth, as the bill of exceptions certifies, "recalled J. L. Robinson for the purpose of introducing his family Bible, in answer to question on cross-examination, to show the age of the prosecutrix." Thereupon the defendant objected to the introduction of the book, upon the ground, among others, that it was "not competent evi dence to show the age of the prosecutrix." The objection was overruled, the Bible was admitted, and the defendant excepted.

It would have been competent, as contended by the Attorney General, to admit the Bible in evidence at the instance of the commonwealth for the purpose of contradicting the testimony of Mrs. Glover as to the year of birth recorded therein. But it does not appear to have been offered for that purpose, and we are unable to see any other proper ground for its admission as a part of the commonwealth's evidence. Mr. Robinson might, if he desired to do so, have properly been allowed to refresh his memory by reference to it, but not to introduce it as primary evidence. He had made the entries and he was present in court as a witness. Under these circumstances the entries in the book were not admissible. The admissibility of such evidence is restricted to cases in which the persons on whose knowledge the reliability of the record depends are not available as witnesses. 1 Green. Ev. §§ 103, 104; Id. (Wigmore's Ed.) § 103; Taylor on Evidence (9th Ed.) 641; 2 Jones on Ev. (Blue Book 1913) § 316; note Ann. Cas. 1912A, p. 1218; People v. Mayne, 118 Cal. 516, 50 Pac. 654, 62 Am. St. Rep. 256; People v. Sheppard, 44 Hun (N. Y.) 565, 566; Campbell v. Wilson, 23 Tex. 252, 76 Am. Dec. 67.

We do not interpret the decision of this court in Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 155, 26 S. E. 421, 36 L. R. A. 271, 64 Am. St. Rep. 715, relied upon by the Attorney General, as being in conflict with the rule as we have stated it here, and as supported by the authorities which we have cited. In that case the entry in the family Bible was made by a person who was not a member of the family, and the Bible itself was shown to have been published some years after the birth of the person whose age was in question. But the book contained a record of births and deaths of the family, and had been kept and treated as the family Bible. Under these circumstances, and without specific reference to the absence of better evidence, Judge Buchanan, who delivered the opinion of the court, said:

"The admissibility of an entry in a family Bible does not depend upon the handwriting or authorship of the entry, but upon the fact that it is in the family Bible. It is of the nature of a record, and, being produced from the proper custody, is itself evidence. The reason why it is admissible, although the handwriting be unknown or made by others than the family, is simply because the Bible being in the family, where all have access to it, the presumption is that the entry would not be permitted to remain if the whole family did not adopt it, and thereby give authenticity to it. Monkton v. Attorney General, 11 Eng. Chy. R. at pages 162, 163 (2 Russ & Mylne); Hubbard v. Lees. 1 Law Rep. (Court of Ex.) 255, 258; 1 Taylor on Evidence, § 650; 1 Greenleaf on Evidence, §§ 104, 105."

While the opinion is silent on the subject of better evidence, it is fair, if not indeed necessary, to assume that the parents or other older members of the family of the insured were dead or out of reach of the court when the Pollard Case was tried. The judgment there complained of was rendered in 1894, more than 50 years after the date in question; and, furthermore, the authorities cited by Judge Buchanan seem to show that such evidence must be excluded when the father or mother, or other declarant, is present in court, or within reach of process.

In this case, therefore, the family Bible could not have been properly introduced in evidence by the commonwealth, except for the limited purpose of contradicting the testimony of Mrs. Glover, and the objection to its introduction as proof of the age of the prosecutrix ought to have been sustained.

2. It is insisted that the verdict of the jury cannot be sustained, and that the defendant is entitled to a new trial, because there was no evidence upon which the jury could properly find that the prosecutrix was 14 years old. We do not take this view of the case. It is true that the direct testimony for the defendant fixed it at 15, and that no witness said she was 14; but in cases of this character much latitude must be accorded the jury as triers of the facts, and upon a view of the evidence as a whole it was not unreasonable for them to reach the conclusion that the true age of the girl was 14 years. If they were satisfied beyond a reasonable doubt that she was under 15, and in doubt as to whether she was over 13, they rendered the only verdict which they could properly render upon the question of the defendant's guilt or innocence. Nor were they bound to accept as literally accurate the testimony of the witnesses on either side. The father testified that she was born in 1907. This would have made her age 13. He admitted, however, that he had recorded her birth as of 1906. This would have made her age 14. His statement as to the record of her age was brought out on cross-examination, and was properly in the case regardless of whether the Bible was introduced...