Limbaugh v. Commonwealth

Citation140 S.E. 133
CourtSupreme Court of Virginia
Decision Date22 November 1927
PartiesLIMBAUGH. v. COMMONWEALTH.

correct statement of law applicable to case, when law is stated, are essentials of fair trial.

Error to Corporation Court of Staunton.

H. A. Limbaugh was convicted of seduction, and he brings error. Reversed.

W. M. Bass, Jr., Timberlake & Nelson, and Curry & Carter, all of Staunton, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

BURKS, J. H. A. limbaugh was convicted of the seduction of Irene Carroll, a girl of 17 years of age, and sentenced to the penitentiary for a term of 4 years.

Limbaugh and his wife were chiropractors, and had practiced their profession in Staunton for several years prior to August, 1925. Their office was on the second floor of a building on one of the public streets of the city. Back of the office, they had their private apartment. There was a large reception room on the front of the apartment, with one door communicating with a small operating room, and another with a dressing room, where patients were prepared for operations. There was a partition between the dressing room and the operating room. This partition was made of beaver boards, or other light material, about 6 feet high and not extending to the ceiling by about 4 feet. There was a doorway in this partition, over which a curtain was usually drawn when a treatment was being given. The duration of a treatment was generally from 4 to 6 minutes.

The Limbaughs sometimes had from 30 to 40 patients a day. Among their patients were H. N. Sackett and his wife, of Fishersville, a small village about 7 miles east of Staunton. The prosecutrix, Irene Carroll, lived in the same village. She was subject to "epileptic fits." The Sacketts thought they had been benefited by the treatment of Dr. Limbaugh, and persuaded the prosecutrix and her mother, who were quite poor, to permit them to take Irene to Staunton for consultation with and treatment by him. Accordingly, on August 6, 1925, the Sacketts took Irene and her mother in their car to Staunton for the consultation. Dr. Limbaugh took a history of the case, and agreed to treat Irene daily for 10 days for $15, and thereafter every other day for a while, and later at intermittent times, if necessary, for $1 a treatment. They had never met each other before this introduction. Irene was taken back and forth for these treatments by Mr. or Mrs. Sackett, or both of them. Usually Mrs. Sackett remained at the office while the treatment was being given, and was there on August 8, 1925.

Irene testified that at the third treatment Dr. Limbaugh told her that he could not help her unless she would have intercourse with him, but that she declined; that he told her that he had been examined, and could not have children, and as he had told her that he could not help her, unless she had intercourse with him, she then consented. She further testified that this intercourse first took place on the 8th of August, 1925, and most every time thereafter when she went to his office for treatment, "about 20 or more, most every time I went." After the lapse of about 6 months she found that she was pregnant, but told no one of it, not even her mother, and on May 2, 1926, gave birth to a full-time child, of which she claimed Dr. Limbaugh was the father.

When the prosecutrix was being examined in chief, she was permitted, over the objection of the accused, to testify as follows:

"Q. Did you tell her [your mother] whose baby it Was? A. She asked me to tell her, and I told her that I would in a few minutes, and I told her it was Dr. Limbaugh's.

"Q. What did you say to Dr. Mosby? A. He asked me whose it was, and I said it was Dr. Limbaugh's."

Each of these questions was objected to promptly, the objection was overruled, and exception duly taken. After the answers were given, a motion to strike them out was made and overruled, and exception taken. These declarations were made to the mother and the attending physician at the time the child was born, and in the absence of Dr. Limbaugh. They were plainly self-serving and immaterial. They could add nothing to the testimony of the prosecutrix as to the paternity of the child, and the objection to the questions should have been sustained.

"Declarations of a witness, made out of court, are not admissible for the purpose of corroborating his testimony in court, for the reason that such evidence is hearsay. Oliver v. Commonwealth, 77 Va. 590; Howard v. Commonwealth, 81 Va. 488; Repass v. Richmond, 99 Va. 508, 39 S. E. 160; Jessie v. Commonwealth, 112 Va. 887, 890, 71 S. E. 612." Atkins v. Commonwealth, 132 Va. 500, 510, 110 S. E. 379, 382.

The defendant had testified that the construction of his office was such that the doors could not be locked. In the course of his cross-examination, the jury was sent out of the room, and the prosecuting attorney stated:

"I am going to show what happened to Miss Lane, and that the doors can be locked."

Counsel for the accused objected to testimony as to what happened to Miss Lane, saying:

"He wants to bring in what happened between Dr. Limbaugh and this girl, and it has nothing to do with the issue in the case we are trying here."

The court concurred in this view, saying:

"Absolutely, and I will instruct the jury that they can consider it for no purpose than to show that the doors could be locked."

In rebuttal, however, when Miss Lane was offered as a witness, the prosecuting attorney did not confine his questions to the locks on the doors, but manifestly intended to get Miss Lane's tale before the jury. Nor did the trial judge say anything about the locks on the doors, but ruled in language that was not distinct and clear on this point. As soon as Miss Lane was offered as a witness, the trial judge said:

"I am going to permit this evidence for the purpose of meeting the testimony of other witnesses for the defendant, to show what weight you may give to this evidence. It is not to show whether the man is guilty of anything in this trial."

Miss Lane had testified that she had taken dictation in the operating room twice. She was not then asked whether or not there was any lock on the door of the operating room, but was permitted to testify, over the objection of the defendant, as follows:

"Q. Tell the jury what happened on one of these occasions. A. One time, I was sitting out in the front, in the reception room, and Dr Limbaugh called me, and told me to bring my notebook and pencil in the operating room, and I asked him why not give me the dictation in the same room where he had been giving me the dictation, and he said to come back in that room; that it was more private in there, and the patients would not hear what he was dictating, if they should happen to come in. When I got in there, he turned the key. in the door, and put the key in his pocket, and he grabbed hold of me, but I grabbed up the phone to call for help, and then he let me go and opened the door."

Motion was also made to strike out this answer, but was overruled and exception taken. This ruling was highly prejudicial to the accused.

The testimony was offered, not for the purpose of impeaching the veracity of the defendant as a witness, but of showing his attitude in his intercourse with women.

In Colvin v. Commonwealth, 147 Va. 663, 137 S. E. 476, 477, it is said:

"There is much to be said in favor of putting before the jury a man's general reputation in the community relevant to the character of the offense with which he is charged, though not first put in issue by him."

But this would not warrant the reception of testimony of an alleged isolated assault upon another woman under entirely different circumstances. Conceding the relevancy of such testimony, there is much relevant testimony that is rejected on account of undue prejudice, unfair surprise, or confusion of issues. 1 Greenl. Ev. (16th Ed. by Wigmore) § 14a. The accused comes to trial to meet the specific charge against him, not to vindicate or to explain every collateral charge that may be made in the course of the introduction of the evidence. His general reputa tion for specific traits of character he is always presumed to be ready to vindicate, but to require him to meet such a charge as was made by the witness, Lillian Lane, would be an unfair surprise to him, would unduly prejudice his case before the jury, and, if the details of his denial were gone into, would unduly protract the trial, and have a tendency to confuse the issue the jury were sworn to try. His general reputation as to his intercourse with women was a legitimate subject of inquiry, but hot the specific assault alleged.

In Jones on Evidence (2d Ed.) § 143, it is said:

"It is a familiar rule that it is improper, on the trial of a defendant for a crime, to prove that he has committed other crimes, having no connection with the one under investigation. Such other acts of criminality or immorality are not legally relevant, and should not be dragged in to prejudice the defendant, or to create a probability of guilt."

See, also, 10 E. C. L. p. 951, § 121; Dillard v. Collins, 25 Grat. (66 Va.) 343, 359; Price v. Commonwealth, 21 Grat. (62 Va.) 846, 868.

There are some apparent exceptions to this rule, where the object is to show guilty knowledge, motive, design, etc.; but they need not be noticed, as they have no application to the instant case.

At the conclusion of the evidence for the commonwealth, the defendant moved to strike it out, because (1) the evidence of the prosecutrix did not make out a case of seduction; and (2) even if it did, her testimony was not corroborated as required by the statute. The motion amounted to a directed verdict of acquittal. It is said we have no such practice in Virginia, though, in the absence of fraud, no power has yet been discovered which can set aside a verdict of not guilty in a criminal case. Montgomery v. Commonwealth, 98 Va. 852, 856, 37 S. E. 1.

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