Davis v. Commonwealth, Record No. 3295.

• Decision Date: 24 November 1947
• Docket Number: Record No. 3295.
• Citation: 186 Va. 936
• Court: Virginia Supreme Court
• Parties: LEONARD E. DAVIS v. COMMONWEALTH OF VIRGINIA.

Page 936

186 Va. 936

LEONARD E. DAVIS v. COMMONWEALTH OF VIRGINIA.

Record No. 3295.

Supreme Court of Virginia, Richmond.

November 24, 1947.

Present, Hudgins, C.J., and Gregory, Eggleston, Spratley and Buchanan, JJ.

1. RAPE — Definition. — Rape is the unlawful carnal knowledge of a woman by force and against her will.

2. RAPE — Sufficiency of Evidence — Uncorroborated Testimony of Prosecutrix. — A conviction of rape may be sustained upon the uncorroborated testimony of the prosecutrix, if it is not incredible and contrary to human experience, and if the guilt of the accused is believed by the jury beyond a reasonable doubt.

3. RAPE — Force — Sufficient to Overcome Resistance. — To constitute the crime of rape there must be some array or show of force in form sufficient to overcome resistance, but the woman is not required to resist to the utmost of her physical strength, if she reasonably believes resistance would be useless and result in serious bodily injury to her.

4. RAPE — Instructions — Force — Case at Bar. — In the instant case, a prosecution for rape, the court instructed the jury that "while the element of force is an essential element in the crime of rape, and while you must believe that the force used was sufficient to overcome the will of the prosecutrix, yet if you believe that the mind and will of the female were overpowered by fear induced by the man, and therefore she made less resistance than she may otherwise have been capable of making, it is rape nevertheless. In this connection, you may consider the time, the place, and relative physical strength and endurance of the prosecutrix and the accused, the whole situation as it confronted her, and all of the circumstances disclosed by the evidence."

Held: That the instruction submitted a rule which was in accordance with the weight of authority.

5. RAPE — Credibility of Prosecutrix's Testimony — Physical Facts — Case at Bar. — In the instant case, a prosecution for rape, defendant contended that the evidence of prosecutrix was incredible and unworthy of belief because she was unable to locate the exact spot where the crime was committed or give the specific hour of its commission; because her clothes were not torn or her person bruised, and because the act could not have been committed in the rear of an automobile in the manner described by the prosecutrix. The prosecutrix was able to specify the general location of the act and to approximate the time fairly closely.

Held: That there was no merit in the contention of defendant Definite and specific details of each and every circumstance surrounding rape are not always to be expected. The natural fright, emotion, and excitement attendant upon such an attack and the desire to escape bodily injuries render the mind unreceptive to all matters, save the most pressing. Torn clothes and bodily bruises are often evidence of force but such evidence is not always present in the crime of rape.

6. RAPE — Sufficiency of Evidence — Case at Bar. — In the instant case, a prosecution for rape, the evidence showed that two police officers met a colored woman on the street at 3:00 A.M. and directed her to enter their automobile. One of the officers was armed and both were strong, stout men. They drove to an isolated spot despite her cries and pleadings and told her to "shut up, if you know what is good for you". After they had parked each had sexual intercourse without her consent. The evidence showed that there was both a show of force and threats which indicated their intention to use force if necessary.

Held: That the evidence met all requirements of unlawful sexual intercourse against the will and by force which was all that was necessary to constitute the crime of rape against an adult female.

Error to a judgment of the Hustings Court of the city of Richmond. Hon. John L. Ingram, Judge presiding.

The opinion states the case.

J. M. Turner and M. J. Fulton, for the plaintiff in error.

Abram P. Staples, Attorney General, and Ballard Baker, for the Commonwealth.

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

On November 4, 1946, in the Hustings Court of the City of Richmond, Leonard E. Davis and Carl R. Burleson were separately indicted, each charged with having committed the crime of rape, on October 20, 1946, upon Nannie Strayhorn, a female of the Negro race, 32 years of age.

Burleson, a white man, 27 years of age, weighing about 180 pounds, was a member of the regular police force of the city of Richmond. Davis, a white man, 43 years of age, described as being stout, was an auxiliary member of the same police force.

Nannie Strayhorn was a married woman, and the mother of two boys, 11 and 13 years of age. Her weight is about 135 pounds. She has lived apart from her husband for seven years, who, at the time of the instance hereinafter related, was an inmate of the State penitentiary.

When arraigned upon the indictments, the accused men, represented by counsel of their own choosing, pleaded not guilty. By consent, given in person by each, they were tried jointly. Each was found guilty by a jury in separate verdicts, and the punishment of each fixed at seven years in the penitentiary. Both of the accused moved the court to set aside the verdicts as contrary to the law and the evidence, and for misdirection of the jury.

On March 21, 1947, the motion of the defendant, Davis, was overruled, and judgment was pronounced against him according to the verdict of the jury. From this judgment he has appealed.

Davis contends that the judgment against him should be set aside on the grounds, first, that the verdict of the jury was contrary to the law and the evidence, viz., for want of evidence to convict, and for lack of credible evidence; second, for error in the admission and refusal of certain evidence; third, for error in the granting and refusing of instructions; and, fourth, that the jury ignored the instructions of the court.

The evidence for the Commonwealth is as follows:

On the night of October 19-20, 1946, Mrs. Strayhorn was attending a party at the home of a colored friend, Mrs. Rosa Lee Page, on Leigh street, in the city of Richmond. Included in the company present was a colored man, Francis Hatchett. Mixed drinks of a mild alcoholic nature were served. About 2:30 a.m., on October 20th, Mrs. Strayhorn indicated her desire to return to her home five or six blocks distant. Hatchett, whom she had known for a short period, offered to drive her to her home in his automobile. She accepted, and they left together. Hatchett drove out Chamberlayne avenue, expressing his desire to go to a resort called the Market Inn for sandwiches. Mrs. Strayhorn did not care to go, and protesting, she made a move to open the door and get out of the moving car. Hatchett slowed down the car, and she jumped out and began to walk fast or run toward her home. Hatchett drove to the curb, stopped his car, got out, chased her, and caught up with her in a short distance, taking hold of her arm. At this particular moment, about 2:45 a.m., while they were discussing the proposed trip to Market Inn, a police car came up. Officer Carl R. Burleson, in full police uniform and armed equipment, got out of the police car and went up to the couple. The police car, with Davis driving, pulled over to the curb a short distance away, facing north on Chamberlayne avenue. Burleson, after talking with Mrs. Strayhorn and Hatchett, and being told that there was no difference between the parties, except that Mrs. Strayhorn wanted to go home, and that Hatchett wanted to take her to Market Inn, told Mrs. Strayhorn to get into the back seat of the police car. After a further questioning about his driving permit, Hatchett was ordered to go to his home. Burleson then returned to the police car, and got in the back seat with Mrs. Strayhorn, telling her that she could be charged with being a person of ill fame. She was, however, never put under arrest. Davis then drove the police car north on Chamberlayne avenue to a spot back of a new development, known as Brookfield Gardens, a secluded and deserted area within the city limits. Hatchett, in his own automobile, undertook to follow the police car, but lost it after it had turned several corners.

In the deserted area back of Chamberlayne avenue, Mrs. Strayhorn said that Burleson had sexual intercourse with her against her will, and that immediately thereafter Davis likewise committed the same offense.

Inasmuch as the conviction of the accused rests largely upon the testimony of the prosecutrix, it is necessary to recite a portion of the sordid details of her testimony, showing the sequence of events from the moment the police car arrived on Chamberlayne avenue, and the police officers first met Mrs. Strayhorn.

Mrs. Strayhorn said, when first ordered into the police car:

"They said they would take me. It was just two blocks from home and they put me in the back seat and he told the driver to go north. They told me to shut up if I knew what was good for me and they continued to drive and I begged and pleaded and prayed for them to let me go home. I had nothing but my bag with my powder puff and handkerchief."

She was then asked what happened after the police car had parked on the isolated road back of Brookfield Gardens, and answered:

"When they drove up and turned the car in this place the driver in front steps out and the one in the back seat pushed me back, and I said, `Please don't you do this to me. I am a respectable married woman with two children and a hard-working woman.' And he said `Shut up' and started pulling at me. I said, `Don't please do this to me, please God be with me.' I didn't have nobody to call on but the Lord and he continued on. I was holding my legs together and he takes my underwear off and he said, `Shut up if you know what's good for you.' Then he continued with what he had to do and then he steps out of the car.

"Did he pry your legs open?

"A. Yes, with his...