Hammer v. Com.
| Decision Date | 13 June 1966 |
| Citation | 207 Va. 159,148 S.E.2d 892 |
| Parties | James C. HAMMER v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Harry J. Kostel, Herbert H. Bateman, Newport News (Jones, Blechman, Woltz & Kelly, Newport News, on brief), for plaintiff in error.
D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.
Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
This is the second of four companion cases decided today, styled Hammer v. Commonwealth.
Hammer was charged in this case with attempted rape of a sixteen-year-old girl in the city of Newport News on April 16, 1964. He pleaded not guilty and waived a jury upon advice of court-appointed counsel. The trial judge found Hammer guilty and sentenced him to a term of thirty years. He appeals from his conviction on several grounds.
The more troublesome questions raised on this appeal have been answered in the opinion in the first companion case. Hammer v. Commonwealth, 207 Va. 135, 148 S.E.2d 878. Defense counsel and the attorney for the Commonwealth, with the concurrence of the trial judge, stipulated that the evidence, rulings, objections and exceptions relating to those questions, as set forth in the transcript of the first companion case, should be applicable to this case.
Hammer gave an incriminating statement respecting this case to lieutenant F. L. Martin of the Newport News police force at 10:10 a.m. on May 14, 1964. The judge admitted this statement as evidence against him at his trial. We hold, for reasons set forth in the opinion in the first companion case, that the statement was improperly admitted because of the uncontradicted evidence concerning a threat made by chief Peach of the Newport News police force.
We reject the arguments that we should hold Hammer's incriminating statement inadmissible on other grounds, and that he was deprived of his constitutional rights because he had no preliminary hearing or because he did not receive copies of the warrants issued against him. Again, the reasons are set forth in the opinion in the first companion case.
Only two issues remain. First, Hammer's counsel argue we should enter final judgment dismissing the charge against him in this case. They say that without the incriminating statement the evidence was insufficient to prove guilt beyond a reasonable doubt. Secondly, they argue that the trial judge improperly refused to admit certain evidence.
The sixteen-year-old prosecutrix was 'baby-sitting' at a home in the Hilton Village section of Newport News on the night of April 16, 1964. Between 9:30 and 10:00, an intruder entered the home by opening the front door. 'He had on a dark blue hooded sweatshirt and a handkerchief across his face and--tennis shoes and dark pants.' He held a gun in his hand, and '(H)e * * * told me (the prosecutrix) just to do what he told me to do and I wouldn't get hurt.' The prosecutrix said she did what the intruder told her to do, while he was in the home that night, because she was 'afraid'; '(b)ecause he had a gun'.
At the intruder's direction, the prosecutrix went into the laundry room. He told her to take off her slacks and pants and to lie on the floor. He opened the zipper on his trousers and lay on top of her. The prosecutrix said he began to penetrate her; 'I don't know how much he did'.
Then, the prosecutrix testified, 'it sounded like the front door was opening and I said it was probably the people coming home so he jumped up real quick and--and he--he went out the back door.' Shortly thereafter, he entered the home again, went into the laundry room, picked up his gun and departed.
The prosecutrix 'thought the people (for whom she was 'baby-sitting') would be there soon so I just waited for a while and then--they weren't there by eleven and I was scared and I called my mother and asked her to come down'. After her mother came, the police were called and the prosecutrix and taken to the hospital for an examination.
The prosecutrix saw the assailant again at about 5:00 p.m. on May 12, 1964. The prosecutrix said he was walking along a street in Hilton Village and 'he had on the same dark sweatshirt and tennis shoes and--trousers', when she recognized him.
Hammer was arrested that night, as described in the opinion in the first companion case. The prosecutrix was brought to police headquarters after his arrest, and she identified him as the person who had assailed her on the night of April 16. Hammer 'had on his outfit, the blue hooded sweatshirt and something across his face and dark trousers and tennis shoes'. The officer standing beside him was also dressed in a sweatshirt (but his other clothing is not disclosed by the testimony), and he apparently had a handkerchief across his face also. When the prosecutrix was asked whether it would have been as easy for her to identify Hammer as the assailant if he hadn't been dressed in that manner, she answered 'Yes'.
The prosecutrix testified positively that Hammer was the person who entered the home where she was 'baby-sitting' on the night of April 16 and assailed her. Hammer denied on the witness stand that he had entered the home and assailed the prosecutrix.
A conviction of rape can be based upon the uncorroborated testimony of a prosecutrix. Robinson v. Commonwealth, 197 Va. 754, 91 S.E.2d 396 (1956). Hammer's counsel recognize of course that this rule applies equally to a charge of attempted rape. They argue, however, that the prosecutrix' testimony about what happened on the night of April 16 was, as a matter of law, incredible because it bore testimony inherently incredible.
But Harvey is clearly distinguishable on its facts. The prosecutrix in that case said that she was assailed under quite different circumstances from those testified to by the prosecutrix in this case. Furthermore, the prosecutrix in Harvey gave no report of the alleged rape until she gave birth to a child approximately nine months later.
Hammer's counsel argue that the testimony of the prosecutrix in this case was incredible because she failed to report the incident before 11:00 on the night of April 16. But the prosecutrix' testimony is not incredible as a matter of law because of this delay in reporting the incident. It was the function of the trial judge, who heard the evidence without a jury, to determine the credibility of the prosecutrix' testimony. He was entitled to give such weight as he deemed proper to her failure to report the incident before 11:00 p.m....
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Hopkins v. Com.
...not establish that those explanations were such that a reasonable juror would necessarily disbelieve them. See Hammer v. Commonwealth, 207 Va. 159, 162, 148 S.E.2d 892, 894 (1966) (prosecutrix's delay in reporting attempted rape did not make her testimony incredible as a matter of law); Cor......
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Hopkins v. Com.
...that the witnesses's explanations were such that a reasonable juror would necessarily disbelieve them. See Hammer v. Commonwealth, 207 Va. 159, 162, 148 S.E.2d 892, 894 (1966) (prosecutrix's delay in reporting attempted rape did not make her testimony incredible as a matter of law); Corvin ......
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Poindexter v. Com.
...testimony alone is sufficient to sustain a conviction. Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968); Hammer v. Commonwealth, 207 Va. 159, 148 S.E.2d 896 (1966); Robinson v. Commonwealth, 197 Va. 754, 91 S.E.2d 396 (1956). An instruction very similar to Instruction E was disallow......
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Corvin v. Com.
...to immediately report the incident did not render his testimony inherently incredible as a matter of law. See Hammer v. Commonwealth, 207 Va. 159, 162, 148 S.E.2d 892, 894 (1966). The jury was entitled to attribute such significance as it deemed appropriate to this delay. Id. In Willis & Be......