Durrette v. Com.

• Decision Date: 25 April 1960
• Docket Number: No. 5076,5076
• Citation: 201 Va. 735,113 S.E.2d 842
• Court: Virginia Supreme Court
• Parties: SHARON EMANUEL DURRETTE v. COMMONWEALTH OF VIRGINIA. Record

Page 842

113 S.E.2d 842

201 Va. 735

SHARON EMANUEL DURRETTE v. COMMONWEALTH OF VIRGINIA.

Record No. 5076.

Supreme Court of Appeals of Virginia

April 25, 1960.

E. C. Wingfield, for the plaintiff in error.

Thomas M. Miller, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: BUCHANAN

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

A grand jury of Nelson county on September 22, 1958, returned an indictment against the defendant, Sharon Emanuel Durrette, containing two counts, one charging him with attempting to rape Mrs. Annie Henderson Ferguson, and the other with maliciously wounding her. On his trial to a jury he was found guilty of the charge of attempted rape and sentenced to twenty-seven years in the penitentiary, the punishment ascertained by the jury. We granted him a writ of error to determine his contentions that he was deprived of his constitutional rights; that improper evidence was admitted; that the evidence was not sufficient to support the verdict, and that certain instructions were improperly given and others improperly refused.

The evidence for the Commonwealth was sufficient to establish the following facts:

Mrs. Ferguson, 29 years old, lived with her husband and small daughter in their home near Hebron church in a rural section on Route 151 in Nelson county, and close by the home of her mother and stepfather, Mr. and Mrs. Henderson. On the morning of August 7, 1958, the date of the alleged crime, Mrs. Ferguson's husband left their home a few minutes after seven o'clock to go to his work some distance away. About ten minutes later Mrs. Ferguson went to a well beyond her mother's home to get a bucket of water. On her way back to her own home she stopped momentarily to speak to her mother and saw the defendant whom she referred to as 'this teenager' going through the yard on the far side of her house, walking fast around toward her back door. She hurried over because her little girl was in bed asleep. As she approached she looked through a window and saw the defendant on the enclosed back porch. She pushed open the screen door, still holding the bucket of water, and the defendant was standing on the mat at the door into the kitchen. He said good morning and asked if she had any eggs to sell. She said she did not but perhaps her mother did. The defendant looked at her for a few seconds, then walked toward her and struck her on the head with a rock held in his hand. She fell to her knees, her arm went into the water bucket and she suffered abrasions to her arm and also to her knee. She was dizzy for a few seconds and as she recovered she thought that possibly he wanted to rob her so she said to him, 'I don't have any money.' He made no reply, just looked at her, then grabbed her arm with both of his hands, raised her up and pulled her two or three feet toward the kitchen door. She screamed at least twice and the defendant ran out, going back around the house as he had come and into the bushes on the hill in front of the house. He was then going in the direction of his own home, which was some distance east of the Ferguson home and back on the hill on the opposite side of the road.

When the defendant grabbed her arm and started pulling her she tried to fight him but said she could not do anything with a young boy. Her head was bleeding and blood was running down on her blouse. It was then about 7:30 a.m.

A doctor examined her later that morning and testified that she had an abrasion on the left temple region of the scalp about 1 1/2 inches long which would have caused immediate bleeding, in addition to abrasions on her elbow and knee. The head wound was such as would be made by the rock which was in evidence, and which was later found on the porch with some hairs on it.

Mrs. Ferguson did not know the defendant at that time but gave the officers a description of him and readily identified him after his arrest and also in the courtroom. Her stepfather testified that he knew him and saw and recognized him that morning as he passed in front of the Henderson home going up the road about ten minutes before he heard Mrs. Ferguson scream. On hearing her he went to her house and immediately called the police. Mrs. Henderson testified that she had known the defendant ever since he was a little boy and that she also saw him as he passed the house. She heard her daughter 'holler' and ran to her and found her standing on the porch with blood running down from her head. She then saw the defendant on the opposite side of the road in the brush, running humped over and going toward the trees on the hill and in the direction of his home.

The defendant was found about 11:30 of the morning of the incident by Sgt. Gaunce, of the State police, at the home of Kee Jackson, for whom he worked. The officer recognized him from the description given by Mrs. Ferguson. He asked the defendant to get into his car and told him they were going down to Hebron church. The defendant got in and rode to that point without making any comment. When they arrived, Mrs. Ferguson came to the car and identified the defendant, who said he had not gone to the Ferguson house and that he was not the person. He was placed under arrest and taken to the courthouse by Deputy Sheriff Dixon and Deputy Sheriff Whitehead. later that afternoon he signed a statement confessing his guilt which was introduced in evidence.

In his statement he said that he left home about eight o'clock that morning and went to the Union church (on the road not far from the Ferguson home), where he expected his employer to pick him up. After waiting about ten minutes he decided to go on up to the Hebron church. There he decided to go up to Mrs. Ferguson's. He knew, he said, that Mr. Ferguson worked in the daytime and was not at home, and he decided to try to have sexual relations (he used a short word for it) with Mrs. Ferguson 'but did not plan to knock her in the head at first.' His statement continued:

'When I got outside of the house I picked up a rock. I was just going to hit her on the head a little bit. I knocked at the screen door and didn't no one answer. Then I went to the main door and knocked but nobody come. After a while she come on in. I told her that I wanted a dozen eggs. She didn't say nothing but that she didn't have none.

'She held the screen door open. When she did I hit her with the rock. The rock was in my right hand. She fell down on the porch on the bucket of water. I caught her by the hand and tried to pull her into the kitchen. She hollered three or four times.

'I took and ran out the door and across the road near where I come in at. I took and jumped across the bank and went on up into the field. Then I took and came back through the field back to the Union Baptist Church. I had just got back there when McKee Jackson picked me up.'

On his trial the defendant repudiated his confession, claiming that he signed it under duress, and testified that he did not go to the Ferguson home but stayed at the Union church until Kee Jackson picked him up that morning; that they then drove to a store where Jackson bought something for his truck and then went back to Jackson's house. The defendant introduced five witnesses who testified to seeing the defendant at the Union church at times of the morning stated to be 7:15, 7:20 and 7:35. Another witness testified that she saw him at Kee Jackson's house that morning, looked at a clock and it was ten minutes until eight. The others said they had looked at a watch or watches at the times stated by them.

Jackson, called by the Commonwealth, testified that he was about thirty minutes late that morning and picked defendant up at the church between 7:30 and 7:45.

Very clearly the evidence was ample to sustain the verdict of the jury. See Ingram v. Commonwealth, 192 Va. 794, 66 S.E.2d 846, and cases there cited.

The defendant contends, however, that his constitutional rights were violated in that the law with respect to the arrest and detention of juveniles (Code, 1958 Cum. Supp., Title 16, Chapter 8, Article 4, Sections 16.1-194 ff.), was not complied with.

The defendant, a Negro youth, was 15 years old at the time of the alleged offense, August 7, 1958. He became 16 on August 24, seventeen days later. A child is defined as a person less than eighteen years of age, § 16.1-141(3). In substance, as applicable to the present case, these sections provide:

No child may be taken into immediate custody except when the officer, under the circumstances, considers it necessary for the child's welfare, or when there is good cause to believe that the child has committed a felony, § 16.1-194; that no warrant of arrest shall be issued for a child between fourteen and eighteen except when its use is imperative, § 16.1-195; that no child shall be transported in a police patrol wagon, or confined in jail, except if over fourteen he may, with the consent of the juvenile judge, clerk or probation officer, be placed in jail or other place of detention for adults in a room or ward entirely separate from adults.

Section 16.1-197 provides that whenever an officer takes a child into custody, 'depending upon the circumstances existing at the time,' he 'shall use the following procedure or such appropriate parts thereof:' followed by a number of alternatives, including the provision that if the child is over fourteen, if the officer taking custody deems it to be for the best interest of the child or of the public, he may, after obtaining a warrant from a person authorized to issue criminal warrants, take the child 'to the special place of detention for juveniles or to a separate cell of the jail apart from criminals or vicious or dissolute persons.' Immediately, or as soon thereafter as reasonably practicable, the custodial officer, or other officer at his direction, shall notify the judge of the juvenile court, its clerk or probation officer, and request...