Cross v. Com., 3794

• Decision Date: 07 May 1951
• Docket Number: No. 3794,3794
• Citation: 64 S.E.2d 727,192 Va. 249
• Court: Virginia Supreme Court
• Parties: ROBERT O. CROSS v. COMMONWEALTH OF VIRGINIA. Record

Page 727

64 S.E.2d 727

192 Va. 249

ROBERT O. CROSS v. COMMONWEALTH OF VIRGINIA.

Record No. 3794.

Supreme Court of Appeals of Virginia

May 7, 1951.

Broudy & Broudy and Major M. Hillard, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

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

Robert O. Cross, sometimes referred to herein as defendant, has been sentenced to life imprisonment upon his conviction by a jury of the rape of Patricia L. Nelson, a little girl six years old. He claims here, as he did below, that the evidence was not sufficient to support the verdict.

Patricia is the daughter of Mr. and Mrs. James Nelson. They have another daughter, Barbara, eight years old. The back yard of the Nelson home adjoins the back yard of the Cross home, in Fox Hall, Norfolk county. The Nelsons had lived in their home six years. Cross had lived in his some 20 years, first with his father and mother and after their deaths with his wife. He had been married four and a half years and had a son two years old. The Cross home faces on Rogers avenue, on the opposite side of which is the home of T. C. Anderson. On one side of the Cross home, separated from it by a driveway, is the residence of E. C. Stang. On the other side, across a ten-foot alley, are tourist homes belonging to Brooks and Arnold. The Cross garage is in his back yard on the line between his property and the Nelson back yard.

Mrs. Nelson, the mother of Patricia, testified that on the afternoon of January 21, 1950, her husband left for his work about two o'clock and about two-thirty she let her two children, Patricia and Barbara, go out into her back yard to play. The defendant was then working in his back yard and his little boy was with him. The Nelson children went over and were helping him rake leaves and playing with the little boy. They came back into their own home two or three times for their dolls and to get water. A little before five Mrs. Nelson went out to call them but they did not answer and she did not see them in the yard. She went back into her house and called the Cross home on the telephone. Cross answered and she inquired whether Patricia and Barbara were there. He replied that they were; that they had just come in to put the little boy to bed for his nap. She told him to send them home and they came straight home.

Later she gave the children their supper and as she was starting their baths, between seven-thirty and eight o'clock, 'Patricia said, 'Mamma, it feels like pins in my fanny', and I asked her what was wrong and she said she didn't know. I said, 'Did Robert bother you today?' and she said 'Nuh-uh,'' (meaning no, Mrs. Nelson said). Mrs. Nelson then said to the child that if anybody bothered her like that she would probably be bleeding to death before she could get her to a hospital. The child inquired, 'Mamma, you mean if you bleed you die?' The mother replied, 'Yes, before I found you you would if it is what I think.' Patricia replied, 'I did, Mamma.'

Mrs. Nelson put her in the tub and Patricia 'went back and told me all of the things that had happened.' She related to the jury the child's description of what had occurred. She examined the child and found that she was 'very open and red, but there was no bleeding, * * * but it looked like scratches, * * * her vagina and rectum both.' When Mr. Nelson came home about eleven o'clock, Mrs. Nelson told him what had happened. They called doctors, who met them at the police station about midnight and she was later taken to a hospital for examination.

Dr. Reba Bliss testified that at the hospital she made a thorough examination and found that the child's vagina was stretched and would admit four fingers. There were no lacerations but a great deal of redness and swelling, and there was a slight abrasion in the posterior portion of the rectum. She took smears from the vagina, high up near the cervix, examined them under a microscope and found spermatozoa.

The doctor testified that there was inflammation in the vagina. She was asked how long it took inflammation to set in, to which she replied, 'From a few hours, from four to six hours.' She further testified that according to her reading it was possible to detect spermatozoa by microscopic examination within 72 hours after sexual relations.

The defendant was arrested at his home by two police officers around two o'clock next morning, January 22. They questioned him at headquarters and testified that he told them that Patricia had been over at his house the afternoon before and had then been in the garage and around in the yard and in the house. They said he denied guilt and stated that he was an educated, intelligent man and would not say he did anything like that. When arrested he asked the officers why they did not have him examined if they thought him guilty.

After Mrs. Nelson testified the Commonwealth called Patricia as a witness, but after preliminary examination she was not permitted to testify, as referred to later on.

Mrs. Cross, defendant's wife, testified that she left home that afternoon at approximately two-fifteen with her sister and the latter's husband to go downtown and without indicating to her husband the hour she would return. She came back about five o'clock, at which time her husband had just come into the house to see if the baby was still asleep.

Cross, the defendant, was 49 years old and was a statistician of the Seaboard Air Line Railway Company, for which company he had worked for 35 years. He had made and introduced in evidence a map showing the location of his home and the relative locations of the Nelson home and neighboring residences. Before that afternoon he had not seen the Nelson children since Christmas. He said that on the afternoon of the 21st they came over in his back yard where he was working and remained there for about half an hour playing with his little boy; that the two girls were together all the time and neither of them was in the garage; that they were in and about the yard but followed him into the house when he took the baby in to put him to bed and left when their mother called and he carried the baby upstairs at approximately five minutes before three. A few minutes later he resumed his work in the yard. Mr. Stang, his neighbor, came by about three-fifteen and they talked. He also talked to Mr. Anderson, who lived across the street, three times during the afternoon and about four o'clock the latter brought his axe over to be sharpened. He said the Nelson children had gone before he talked to Stang or Anderson. He denied guilt and testified he had never been arrested or charged with any offense in his life involving moral turpitude. He said he might have told the officers he did not know whether anyone saw him that afternoon but stated he was doing the best he could under the circumstances to reply to their questions.

Stang testified that he was at a large window of his dining room at work on some problems of mathematics, facing and having a view of the defendant's back yard from one o'clock until about four-thirty, with the exception of about twenty minutes from about three to three-twenty. He did not see any children in the yard but heard children, sounding like three or four, playing on his driveway between his and the Cross property. Between three and three-twenty he took his dog for a walk and on his way back he stopped to talk to Cross. He did not see either of the Nelson children in the Cross yard at that time but after he went back into his house he heard several children playing on the driveway. About four-thirty or four forty-five he again saw Cross in his yard transplanting some small trees. The children were not there then. He also saw Anderson come along the driveway and go to the Cross garage about four o'clock. The children were not in the yard then and he did not see them...