Carpenter v. Commonwealth

• Citation: 44 S.E.2d 419,186 Va. 851
• Parties: CARPENTER . v. COMMONWEALTH.
• Decision Date: 13 October 1947
• Court: Supreme Court of Virginia

186 Va. 851

44 S.E.2d 419

CARPENTER .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 13, 1947.

Error to Circuit Court of City of Hopewell; J. J. Temple, Judge.

Walter Carpenter was convicted of an assault and battery upon a seven year old girl whom he had taken into his home to rear and care for, and he brings error.

Judgment affirmed.

Before HUDGINS, C. J., ^* and GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.

W. A. Hall, Jr. and John W. Fussell, both of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Ballard Baker, of Richmond, for Commonwealth.

SPRATLEY, Justice.

The plaintiff in error was convicted of an assault and battery upon a tittle girl, seven years of age, whom he had taken into his home to rear and care for. The case was heard de novo in the Circuit Court of the city of Hopewell, upon an appeal from the Civil and Police Justice Court. The jury found him guilty and fixed his punishment at a fine of $500 and twelve months in jail.

The assignments of error are that the trial court refused the defendant permission to properly test the qualifications of the jurors, incorrectly admitted and rejected evidence, and improperly granted and refused certain instructions. It is also contended that the verdict of the jury was contrary to the law and the evidence.

For the first time in the history of this court, we are called upon to pass upon a question involving the measure of punishment which may be lawfully inflicted upon a child by a parent, or one standing in loco parentis.

The evidence may be summarized as follows:

Walter Carpenter had been married for four years, and, in 1945, with his wife lived in a trailer at a service station, in Hopewell, Virginia. They had no children of their own. Agnes Carpenter, seven years of age, was, in December, 1945, by her mother, placed in the care and custody of Mr. and Mrs. Walter Carpenter. The child's mother lived in North Carolina. Her father was dead. There is no blood relationship between the Carpenters and Agnes. Until the date of the happening hereinafter related, Agnes lived with the Carpenters, and by them was taken care of and provided for.

Late in the afternoon, on August 20, 1946, Horace T. Holt, sitting in the yard of his home, 75 feet from the trailer occupied by the Carpenters, heard a child crying. He saw Walter Carpenter come out of the trailer and get a switch off a tree and strip the leaves off it. Agnes came out behind him and ran behind the trailer. When she went inside the trailer, Carpenter followed her with the switch in his hand. Holt then heard the child crying and screaming. He heard some "licks" being administered to her with a switch or some instrument for "possibly a couple of minutes or more." He called the police department. The police came, but did not go into the trailer and went away. Later he heard someone whipping the child again and the child crying and screaming. The police were again called; but made no investigation.

A. J. Lipscomb, who was also in the yard of Holt during the above occurrence, corroborated the testimony of Holt.

On August 21st, Mrs. A. J. Lipscomb and Mrs. C. L. Chapman testified that they saw the child, and observed that her legs were cut and bruised badly up to where her little dress came down; that her arms were bruised; and that she had a gash across her forehead and a bad bruise on her cheek.

On August 22d, Carpenter was arrested on a criminal warrant issued on complaint of Holt, charging the former with cruelly beating the child. On that day, Mrs. Fanny S. Mohr, Superintendent of Public Welfare for the city of Hopewell, went to the trailer of Carpenter, and there found the little girl, Agnes. Mrs. Mohr testified as follows regarding the condition of the child:

"A. At the request of Judge Heflin I took the child to the office of the Department of Public Welfare, where I stripped the child's clothing off and examined her body. On her back, from her shoulders down to her buttocks, and on her buttocks, it was a mass of stripes, some of which were open and bleeding, and some had scabs on them. Of that portion of her body I would say there was not one-fourth of an inch that was not covered with a mass of those stripes; and also on her forehead there was a bruise, and there was a large gash right across her face; and the same as the scars that were on her body, her face and arms were covered with scars, which were partially healed, but still obvious; and her legs and arms were just a mass of these scars; and she was badly bruised from her hip down to her knees, on the inner side of her legs. It was just a bleeding mass of bruises.

"Q. Would you tell the jury whether the stripes on her back--you say they were bleeding? A. Some of them were bleeding, but some scabs were on them.

"Q. Now, will you indicate to the jury about the stripes on her back--in what direction were they? A. They were in all directions; some up and down, and some diagonally across her body.

"Q. Were they welts or not? A. They were not welts; they were gashes one-eighth of an inch wide; some longer than others.

"Q. And they extended from her shoulders down to the end of her body? A. Yes, sir, and they were open; they were new scars.

"Q. And then on her legs there was a mass of bruises? A. On the upper portion, from her buttocks to her knees, it was a mass of blue; there was no white flesh showing at all.

"O. Was that the condition of the front of her legs? A. It was on the inside of her legs, down to her knees. And there were also scars which she had received at an earlier date, similar to those on her body.

They were on her arms and legs. They were healed. There were no fresh scabs on them, but the scars were still there."

Agnes was, on the same day, August 22d, placed in the custody of Mrs. Alice Green, where she remained for the next two weeks. Mrs. Green immediately undressed Agnes, and gave her a bath. As to the child's condition, she testified as follows:

"Q. Now, what was the condition of her back at that time? A. The condition of her back at that time was right bad.

"Q. Tell the jury what was the condition. A. It was bruised and also there was blood out of her back.

"Q. What kind of marks were on there where the blood had been drawn out? A. Where the blood was, that was by the switch.

"Q. How long were those marks? A. They were not so long, but they were cuts.

"Q. Were there any other marks on her besides those? A. Yes, she had some marks of a strap or a belt.

"Q. How could you tell that it was a strap or a belt? A. Well, I am a mother of three children and I should know.

"Q. How wide were they? A. Probably an inch.

"Q. And those that appeared to be made by a switch were narrow? A. Yes sir.

"Q. How about on her legs? A. She had quite a bit of bruises on her legs.

"Q. From a switch? A. Yes, and also from a belt.

"Q. Where were those marks? A. They were between her knees and her hips.

"Q. Was there any blood drawn from those? A. No, sir, the blood was drawn from her back."

Mrs. Green further said that some of the wounds made on the child indicated that they were made by a strap or belt. She described the difference between marks made by a switch or a blunter instrument, saying, "A mark made by a belt is wider; a kind of blister; the blood is brought to the surface; and a mark made by a switch is a scratch, and it shows some bruising."

The little girl, Agnes, was sworn as a witness. No examination to test her com petency was made or requested. This is what she said about the whipping:

"Q. Now, Agnes, just a little while before Mrs. Mohr got you did either of these people whip you (indicating)? A. The man whipped me.

"Q. What did he whip you with? A. He whipped me with a belt and with a switch.

"Q. What part of your body did he whip? A. He whipped me all over, where-ever he could whip me.

"Q. Now, did he make the blood come out of you? A. Yes, sir.

******

"Q. Did he whip you with the switch first or with the belt first? A. With the switch first.

"Q. Then after he whipped you with the switch, he whipped you with the belt? A. Yes sir.

"Q. Is that whipping what made these scars and bruises on your legs and body? A. Yes, sir."

Agnes further stated that she had formerly lived in the mountains, and in Richmond, and that the Carpenters had given her plenty of clothes, toys, a tricycle, a wagon, and candy.

Some of the witnesses said that Agnes was a well behaved and obedient child. Mr. and Mrs. Carpenter said she was stubborn, and would not cry aloud or scream when whipped.

The defendant admitted that he had whipped Agnes on August 20th, for taking, without permission, a box of candy belonging to his wife. He said he struck her five or six times and only with a small switch broken from a tree in the yard. He denied that he caused the described marks, wounds and welts found on the child's body. He declared that he had never seen them, and he was unable to account for them. He further testified that he had whipped the child on two former occasions, one time for begging on the street and another for stealing some candy from a store.

Mrs. Carpenter corroborated her husband as to the extent of the whipping given the child. Notwithstanding the location of the marks and bruises on the child's body, sheundertook to explain them by saying that they were scars from accidental wounds which the child kept sore by scratching with her fingernails. She said that good care had been taken of the child and that when Agnes was taken from their custody, there were taken with her thirty dresses and other clothing, including a new overcoat costing $17.50. She thought the cries and screams which were heard by her neighbors on August 20th came from a radio program which was being received in the Carpenter trailer.

Mrs. Carpenter was also arrested and charged with the same offense as her husband. By consent of the parties, her case was heard at the same time as that of her husband. During the trial, at the suggestion of the Commonwealth's...