Carpenter v. Com., 3979

• Decision Date: 16 June 1952
• Docket Number: No. 3979,3979
• Citation: 71 S.E.2d 377,193 Va. 851
• Parties: ARCHIE CARPENTER v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 377

71 S.E.2d 377

193 Va. 851

ARCHIE CARPENTER v. COMMONWEALTH OF VIRGINIA.

Record No. 3979.

Supreme Court of Appeals of Virginia

June 16, 1952.

W. A. Hall, Jr. and Percy S. Smith, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Thomas M. Miller, Assistant Attorney General, for the Commonwealth.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

The defendant, Archie Carpenter, was indicted, tried and convicted upon an indictment which charged that he, on or about December 9, 1950, in the county of Orange, Virginia, 'with force and arms, in and upon one Virginia Peregoy, the said Virginia Peregoy, then and there being a female person of the age of 15 years, unlawfully, feloniously and violently did make an assault and her, the said Virginia Peregoy, then and there unlawfully and feloniously did ravish and carnally know, against her will and by force, * * *.' Code of Virginia, 1950, § 18-54. We granted a writ of error, and defendant asks us to reverse the judgment against him upon a number of grounds.

The evidence may be briefly stated as follows:

The prosecutrix, Virginia Peregoy, a niece of the wife of the defendant, testified that she was fifteen years of age on October 12, 1950. This was verified by her father, and by a birth certificate introduced in evidence at the request of the defendant. She lived in Orange county, on a farm with her father. She had known the defendant about six years. On Saturday, December 9, 1950, her father drove her and Virginia Garner, about fourteen years of age, to the home of the defendant, arriving there about 6:00 p.m. About fifteen minutes later her father returned to his home. Virginia Peregoy, Virginia Garner, Hazel Carpenter, the wife of the defendant, and his four year-old daughter then got into the automobile of the defendant and he drove them to the town of Orange, arriving there about 7:30 p.m. There they did some small shopping in a food market for a short time, and then all of them re-entered the automobile and Carpenter drove them up the street to find a place to park his car. Not finding an available parking place, they returned towards the food market. Carpenter stopped the car, and Mrs. Carpenter and her little daughter got out. Then Carpenter, with the prosecutrix and Virginia Garner on the back seat of the car, drove to a point outside the town at an S curve, where he turned off and went down a dirt road about one and one-half or two miles, and parked by a railroad track.

According to the prosecutrix, he stopped, got upon his knees on the front seat, and tried to get his hands under her dress, while she and the Garner child were still in the back seat. The prosecutrix knocked his hands away from her knees. He got out of the car, came around to the opposite side, and told her to get out. He tried to pull her out by her hands, while the Garner child was trying to hold her in the car. Virginia Peregoy resisted by pinching, slapping, smacking and kicking him. However, he pulled her out of the car and forced her legs apart while she was up against the back fender opposite the driver's side. She continued to kick him, but, nevertheless, he had sexual relations with her despite her resistance and lack of consent. She finally freed herself and got back in the car, and he drove her and Miss Garner back to Orange and there picked up his wife and child.

Virginia Garner fully corroborated the testimony of the prosecutrix. She stated that after the defendant parked on the dirt road, he made four attempts to put his hands under Virginia Peregoy's dress; tried to persuade her, the prosecutrix, to get out of the car; that when she would not do so he pulled her out, while she, the witness, was trying to hold Miss Peregoy in the car; that he held the prosecutrix up beside the fender with her right hand behind her back while Miss Peregoy continued to scratch, pinch and kick him; that notwithstanding the efforts of Miss Peregoy to prevent his attack, the defendant had sexual intercourse with the prosecutrix; that she saw him pulling up his pants after the occurrence; that upon the return trip to Orange, Carpenter told them not to tell anybody about what had happened; and that they then rejoined the wife of the defendant and his daughter, went to a motion picture show, got some light refreshments, and thereafter Carpenter drove them home.

With this evidence the Commonwealth rested its case.

In his testimony, the defendant said that he did not drive out of town with the two girls, but only went up the street to turn around while his wife was shopping. Upon cross-examination, he denied that he had previously told two police officers investigating the case that he did drive the two girls to the described dirt road in the county with intention of having sexual intercourse with the prosecutrix; bht that when she refused his several requests to get out of the car, he abandoned his purpose and drove back to town.

Sheriff M. M. Myers of Orange county and Officer Porter C. Davis, called in rebuttal, testified to a conversation they had with the defendant on December 13, 1950, before he was arrested. They said that after warning him of his rights, and telling him that he did not have to answer any of their questions, they interrogated him in regard to his movements on December 9, 1950. He first denied that he took the two girls out to the dirt road; but as the questioning continued, the officers confronted the defendant with the two girls. When Miss Peregoy repeated her accusation against him, Carpenter admitted that he did take the girls out to the road in question for the purpose of having sexual intercourse with the prosecutrix, and described the place to the officers; but said, however, he did not have sexual intercourse with the prosecutrix because she refused to get out of the car. He got out but upon her refusal to get out, he got back into the car and drove into town.

Defendant made a general objection to allowing Sheriff Myers to testify on the ground that, in beginning his testimony, 'the Sheriff should have made the usual statement that they (the admissions of the defendant) were voluntarily made.' When the court held that the admissions might be introduced in contradiction of the defendant, there was no objection or exception. Nor was there any objection to the testimony of Officer Davis.

A number of witnesses testified that the defendant was a steady worker, and that his reputation was good.

At the conclusion of the Commonwealth's evidence in chief, counsel for the defendant made a motion in the presence of the accused to strike the evidence of the Commonwealth. The motion was overruled and defendant excepted. The defendant then introduced his evidence, and at the conclusion of all of the evidence, the court asked if there was any request for instructions. The stenographic transcript of the evidence shows that, upon receiving an affirmative reply, 'the Court, counsel for the Commonwealth and counsel for the defendant retired to chambers.' No mention is made of the presence of the accused in chambers. Counsel for the defendant then moved to strike the Commonwealth's evidence as to forcible rape, upon the ground that there was 'no credible hypothesis for believing it was forceable rape.' The court held that the question of force was for the jury and overruled the motion. The defendant excepted, and then asked the court to instruct the jury that there was 'no evidence before them upon which they could bring in a verdict of forciblerape.' This motion the court overruled and defendant excepted. Instructions were then offered and granted, without exception, fully covering the case. On the same day, February 2, 1951, the jury returned the following verdict:

'We, the Jury, find the defendant guilty of having carnal knowledge of Virginia Peregoy without force and fix punishment at eight years.'

The record shows that this then took place:

'The Court: Is there any objection to the form of the verdict?

'Mr. Higginbotham: I think it ought to be she being a female of fifteen years of age.

'Mr. Jackson: We will object to that kind of amendment.

'The Court: What is the objection?

'Mr. Jackson: They find him guilty of having intercourse without force, which is no crime.

'The Court: The evidence shows that she was less than fifteen years of age, I think I will permit the amendment.

'Mr. Jackson: We except to the ruling of the Court.

'The Court: Gentlemen with this amendment to your verdict it now reads: 'We, the Jury, find the defendant guilty of having carnal knowledge of Virginia Peregoy without force she being a female child under the age of sixteen years and fix his punishment at eight years in the State Penitentiary.' Is that your verdict, gentlemen?

'The jurors answered in the affirmative.

'The Court: Do you wish the Jury polled as to the verdict?

'Mr. Jackson: Yes sir.

'Thereupon each member of the Jury was polled and answered in the affirmative when asked if the verdict as amended was his verdict.

'Thereupon the Court discharged the Jury.

'Mr. Jackson: We move to set aside the verdict of the Jury as contrary to the law and the evidence and not supported by the evidence; that if there were not forcible rape there was nothing.'

The motion was set down to be heard on March 29, 1951, and the accused was admitted to bail. The next order in the case, entered on June 8, 1951, so far as material, reads as follows:

'And the court having heretofore, to-wit: on the 2nd day of February, 1951, set this case for argument on the motion to set aside the verdict of the jury for the 29th day of March, 1951, at which time the accused was personally present in open court, and the court heard the oral arguments of the attorney for the Commonwealth and the attorneys for the accused on the motion to set aside the verdict of the jury rendered in this cause on the 2nd day of February, 1951.

'And the court after hearing...