Farrar v. United States

• Decision Date: 11 December 1959
• Docket Number: No. 15223.,15223.
• Citation: 275 F.2d 868,107 US App. DC 204
• Parties: Pleasant D. FARRAR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

107 US App. DC 204, 275 F.2d 868 (1959)

Pleasant D. FARRAR, Appellant, v. UNITED STATES of America, Appellee.

No. 15223.

United States Court of Appeals District of Columbia Circuit.

Argued October 2, 1959.

Decided December 11, 1959.

Petition for Rehearing Denied February 16, 1960.

Opinion Amended February 18, 1960.

Mr. John E. Nolan, Jr., (appointed by this court), Washington, D. C., for appellant.

Mr. Harold H. Titus, Jr., Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.

Petition for Rehearing In Banc Denied February 16, 1960.

EDGERTON, Circuit Judge.

Appellant, charged with rape, waived a jury trial and was convicted by a judge.

The complaining witness was an 18-year old girl to whom intercourse was not a new experience. Late at night appellant, a stranger to the girl, accosted her in a street, and they walked together two or three blocks to his room. They undressed and had intercourse. About 45 minutes later they had intercourse again. During the interval, he left the room and brought her a drink of water at her request and poured some whiskey. Finally she partly dressed, went to a bathroom, "turned both spigots on", left the building, went to a fire station, and said she had been raped. Police were called and took her back to appellant's room. He at first said he did not know her, but presently admitted he had intercourse with her. So much is undisputed.

The girl testified at appellant's trial that she walked with him to his room, and undressed, because he threatened to kill her if she refused to do so. But she did not testify that her taking part in intercourse was induced by those threats, or by words of any sort. She testified to the contrary. When she was asked, "how did you happen to have this second intercourse with Mr. Farrar?", she replied: "He made me have the second the same as the first. Q. What did he say to you? A. He didn't say anything. Every time he got ready to have intercourse with me, he put the knife around my neck."

She testified that he had a knife in his hand, and constantly pressed it against her, all the time they were walking together through the streets, through the door into the house, and upstairs to his room,¹ and that he had it in his hand much of the time she was in his room.² Yet she repeatedly testified that she never saw it.³ There were lights in the streets. There was a light in the room. The girl's eyes were not closed and she was "looking at him." Neither the girl nor her clothing was marked by a knife. The police promptly searched the room. No knife was ever found.

It is nearly or quite incredible that appellant could have used a knife as extensively as the girl said he did without her ever seeing it. It is so nearly incredible that a reasonable inference, if not the only reasonable inference, from the testimony of the girl herself, is that appellant did not use a knife. And there is no evidence that her participation in intercourse was induced by any other kind of force or threat.

She afterwards accepted $15 from a girl friend of appellant. She gave a receipt, in her own handwriting, which was produced in court. On the witness stand, she admitted that she wrote the receipt but denied that she got the money.

The appellant testified that he never threatened the girl, with a knife or otherwise;⁴ that he promised to pay her; that they had intercourse with her consent; and that he did not pay her. He said: "I didn't give her anything; I promised it to her." The girl testified more than once that he promised to pay her: "He said he would give me some money. * * He said he would give me anything, anything I wanted. Those were the words he used." She did not testify that he kept his promise.

The theory of the defense is that she became angry because he broke his promise and that she therefore accused him of rape. In the light of all the conflicting evidence, this hypothesis seems to us at least as likely as any. With deference to those who think otherwise, we are obliged to say that in our opinion it cannot reasonably be regarded as proved beyond a reasonable doubt that the appellant was guilty of rape. "We must reverse a criminal conviction when it is `clear to us that upon the evidence * * * a reasonable mind must necessarily have had a reasonable doubt as to * * * guilt.'"⁵ The conviction is therefore reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.

Reversed.

WILBUR K. MILLER, Circuit Judge (dissenting).

Farrar was tried and found guilty by Judge Schweinhaut, sitting without a jury. The appellant first denied and then admitted having had intercourse with the complaining witness, but said she had submitted voluntarily. So the issue at the trial was whether the victim had consented.

She testified Farrar met her on the street at night and, at what she thought was the point of a knife in her back, marched her to his apartment where, under threats of bodily injury, he forced her to yield to him. As soon as she escaped from the scene, the girl ran to a nearby fire house and reported the attack, whereupon the police were called.

It was argued strongly that the evidence was insufficient to support the conviction because the girl never saw a knife and Farrar had none when he was arrested at the apartment soon after the event. The majority adopt that view. They also say that in other respects the testimony of the complaining witness was incredible; but in so doing they substitute their opinion concerning the credibility of witnesses for that of the trial judge.

Before discussing the law as to whether an appellate court may make that substitution, I think it well to point out what I regard as infirmities in the majority's statement of the case¹ which seem to me to make it fall short of being an objective narrative. When the testimony is viewed objectively, it becomes apparent that the case turns on the credibility of the witnesses and not on the sufficiency of the evidence; that there was evidence sufficient to convict if the prosecution's witnesses were credited.

At the outset, the majority say, "The complaining witness was an 18-year old girl to whom intercourse was not a new experience." This seemingly implies she was therefore unchaste, but there was no evidence that she had never been married. Anyway, the unchastity of the victim is not a defense to a charge of rape unless it is made so by statute, which has not been done in this jurisdiction.

The majority opinion says Farrar "brought her a drink of water at her request and poured some whiskey." This intimates that the victim shared Farrar's whiskey with him. In fact, however, the undisputed testimony is that she refused to partake of the whiskey.

My brothers also say:

"* * * Finally she partly dressed, went to a bathroom, `turned both spigots on\', left the building, went to a fire station, and said she had been raped. Police were called and took her back to appellant\'s room. He at first said he did not know her, but presently admitted he had intercourse with her. So much is undisputed."

While this terse statement is true, it is so incomplete that it does not reveal the full truth. It does not say why or how she was partly dressed, nor why she "turned both spigots on" in the bathroom. It mildly says she "went" to a fire station and inadequately states she "said she had been raped." I reproduce in the margin the victim's testimony as to how she was clothed, why she "turned both spigots on," that she ran to the fire house at about 3:00 o'clock on a February morning, clad only in a skirt and sweater, and there tearfully told her story.²

No witness said she merely "went to a fire station, and said she had been raped." The girl said, "When I got outside I screamed — I went to crying. I left and ran all the way * * *." A fireman said he heard "loud crying on the outside" and, when he admitted her, "she was crying and it seemed like she was upset and nervous." I suggest there is a vast difference between the majority's statement that she "went to a fire station, and said she had been raped" and the actual facts shown by the undisputed testimony of two witnesses.

Again, the majority write as follows:

"The girl testified at appellant\'s trial that she walked with him to his room, and undressed, because he threatened to kill her if she refused to do so. But she did not testify that her taking part in intercourse was induced by those threats, or by words of any sort. She testified to the contrary. * * *"

Her testimony "to the contrary," then quoted in the majority opinion, was that she submitted to him because he menaced her with a knife. So, about all the majority are saying here is that the verbal threat which caused her to undress did not cause her to submit to intercourse, but that submission was due to a physical threat. This distinction is incomprehensible, except that the majority then demonstrate to their own satisfaction that Farrar had no knife; ergo, their conclusion is that she yielded to the menace of a knife when there was no knife.

Farrar testified he did not have a knife, and the girl said she did not see one. On that basis, the majority state there was no knife. In this connection, it is interesting to note the testimony of Mrs. Irma Smith, a policewoman who was called as a witness by the appellant, concerning statements made by Farrar in her presence at the police station. She said Farrar stated that, when the girl refused to undress and get in bed, "he might have held the knife against her neck at the time." I suggest that the fact the police found no knife and that the girl actually saw none is not conclusive that Farrar was not so armed. He might easily have disposed of his knife before the police arrived.

Whether there was a knife or not, I regard as immaterial. Some sharp...