Everett v. Com.

• Decision Date: 26 November 1973
• Citation: 214 Va. 325,200 S.E.2d 564
• Court: Virginia Supreme Court
• Parties: Elsie Poole EVERETT and Clarence Leroy Wright v. COMMONWEALTH of Virginia.

Page 564

200 S.E.2d 564

214 Va. 325

Elsie Poole EVERETT and Clarence Leroy Wright v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Nov. 26, 1973.

James W. Benton, Jr., Richmond (S. W. Tucker, Henry L. Marsh, III, Hill, Tucker & Marsh, Richmond, on brief), for plaintiffs in error.

Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

PER CURIAM.

Upon warrants charging 'unlawful cohabitation in violation of § 18.1--193' appealed from the County Court for Dinwiddie County, the trial court, sitting without a jury, entered orders on September 28, 1971 finding Elsie Poole Everett (Mrs. Everett) and Clarence Leroy Wright (Wright) guilty of 'open and gross lewdness and lasciviousness' and imposing a fine on each of $300.00.

The sole question raised by the several joint assignments of error is whether the evidence was sufficient to support the finding.

Mrs. Everett lived in Unit 9 of The Blue Tartan, once a motel, converted and operated as a complex of efficiency apartments. As the result of 'complaints from the general neighborhood concerning immoral actions at this particular building', three deputy sheriffs conducted a surveillance of the premises for about two months. On several nights in the later evening and early morning hours, one or more of the deputies saw Mrs. Everett's car and Wright's car parked near Unit 9.

One deputy testified that he observed Wright's car parked there about 9:00 p.m. on July 17, 1971. Another deputy testified that when he commenced surveillance at 11:30 p.m., he saw both cars. By 2:00 a.m., three deputies were in a position across the highway, from which the surveillance was maintained. At that time, a light came on in the back bedroom, and the officers approached the building. The wind parted the curtains at the open window to the back bedroom and one of the deputies, stationed near the window, saw Mrs. Everett, nude, talking on the telephone. He watched as she walked to the bathroom and back to the telephone.

Standing at the front door, another deputy looked through the window of the unlighted front bedroom and an inner doorway into the lighted back bedroom where he saw the end of a bed and clothes on a chair. He watched as Mrs. Everett passed the inner doorway, and when she passed the third time, he knocked on the front door and identified himself. Mrs. Everett came to the door, clad in a robe. When asked for Clarence Wright, she returned to the back bedroom where he saw her throw 'what appeared to be a T-shirt and underpants' toward the bed. She returned to the front door with Wright who was wearing a T-shirt and trousers but no shoes. Wright said that he had gotten the apartment keys from Mrs. Everett and, feeling ill, had come to the apartment early in the evening, gone to bed and slept until awakened by the knock on the door. Mrs. Everett told the deputies that she had not had sexual relations with Wright and offered to submit to a medical examination.

Code § 18.1--193 (Repl.Vol.1960) states in pertinent part:

'If any persons, not...