Limbaugh v. Commonwealth

• Decision Date: 22 November 1927
• Citation: 149 Va. 383
• Parties: LIMBAUGH v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 383

149 Va. 383

LIMBAUGH v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

November 22, 1927.

1. SEDUCTION — Evidence — Declarations of Prosecutrix to Her Mother and Doctor as to Paternity of Her Child — Case at Bar. — In the instant case, a prosecution for seduction, prosecutrix was asked if she told her mother and her doctor who was the father of her child, to which she replied that she had told them that accused was the father. The declarations of prosecutrix as to the paternity of the child were not made in the presence of the accused.

Held: That this testimony was inadmissible as self-serving and immaterial as it could add nothing to the testimony of the prosecutrix as to the paternity of the child, and the objections to the questions should have been sustained.

2. DECLARATIONS AND ADMISSIONS — Corroboration of Witness — Admissibility. — 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.

3. SEDUCTION — Evidence — Proof of Other Crimes — Case at Bar. — In a prosecution for seduction defendant had testified that the doors of his office could not be locked. A former stenographer of the defendant was called and the prosecuting attorney stated that he intended to show by her what happened to her and "that the doors could be locked." Counsel for the accused objected, saying that the prosecution wanted to bring out want happened between accused and the stenographer. The court agreed that what happened between accused and the stenographer was inadmissible and said that it would instruct the jury that they could consider the stenographer's evidence only for the purpose of showing that the doors could be locked. The prosecuting attorney, however, did not confine his questions to the locks on the doors, but manifestly intended to get the stenographer's tale before the jury, and the court said nothing about the locks on the doors in its instructions but said it admitted the evidence for the purpose of meeting the testimony of other witnesses for the defendant. The stenographer testified that the accused locked the door and grabbed her, but that she grabbed up the phone to call for help and he let her go. A motion was made to strike out this testimony but was overruled.

Held: That the testimony was not offered for the purpose of impeaching the veracity of defendant as a witness, but of showing his attitude in his intercourse with other women, and was highly prejudicial.

4. CRIMINAL LAW — Evidence — Evidence of Other Crimes — Case at Bar. — 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 reputation for specific traits of character he is always presumed to be ready to vindicate, but to require him to meet a specific charge in a prosecution for seduction of an alleged assault on another woman would unduly prejudice his case.

4. CRIMINAL LAW — Directing Verdict — Setting Aside Verdict of Not Guilty. — It is said that the practice of directing a verdict of acquittal in a criminal case does not obtain 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.

6. QUESTIONS OF LAW AND FACT — Evidence — Weight and Credibility of Testimony. — The jury are the sole judges of the credibility and weight of testimony. If the evidence is relevant, it should be received, and the jury should be permitted to determine its credibility and weight.

7. CRIMINAL LAW — Evidence — Striking Out Evidence. — The trial court can strike out evidence that is relevant only where, after giving full faith and credit to the witnesses and drawing all inferences from their testimony that a jury might fairly draw therefrom, it plainly appears that the trial court would feel compelled to set aside a verdict found in accordance therewith.

8. SEDUCTION — Motion to Strike Out Evidence for Commonwealth — Case at Bar. — In the instant case, a prosecution for seduction, the defendant at the conclusion of the evidence for the Commonwealth moved to strike it out on the ground that it did not make out a case of seduction, and, even if it did, prosecutrix was not corroborated. This the court refused to do.

Held: That the ruling of the court was proper as the case was not one in which it plainly appeared that the trial court would have felt compelled to set aside a verdict of guilty if returned by the jury.

9. SEDUCTION — Married Man — Unmarried Man — Appeal to Affections of Prosecutrix. — In the case of seduction by an unmarried man, it must appear that there was an appeal in some way to the affections of the woman seduced. But the Virginia statute (Code of 1919, section 4410) recognizes that there may be seduction by a married man, and provides for the punishment therefor, and the fact that the statute punishes as a crime seduction by a married man, is a recognition of the fact that there are other means by which, within the meaning and intent of the statute, a female of previous chaste character may be led astray from the paths of virtue.

10. SEDUCTION — Common Law — Construction of Statute. — Seduction was not a crime at common law, but is wholly a creature of statute, and from the statute the intention of the legislature must be gathered.

11. SEDUCTION — Leading Astray — Married and Unmarried Man. — Whether the man be married or not, there must be a leading astray of the femalefrom the paths of virtue. Mere sexual intercourse is not sufficient. But the means by which the female may be led astray are not necessarily the same in the case of a married man and one who is not married.

12. SEDUCTION — Married Man — Definition. — Seduction by a married man is the offense of inducing an unmarried female, of previous chaste character, to consent to unlawful sexual intercourse by enticements and influences which overcome her scruples.

13. SEDUCTION — Married Man — Leading Astray. — There may be seduction by a married man, without "urgent importunity based upon professions of attachment." The offense consists in leading astray from the paths of virtue of a female of previous chaste character. If other means than appeals to the affection of the female overcome her scruples, debase her nature and draw her aside from the path of virtue, the offense has been committed.

14. SEDUCTION — Married Man — Leading Astray — Doctor and Patient — Case at Bar. — In the instant case, a prosecution for seduction, the defendant occupied a confidential relation to the prosecutrix, that of doctor and patient. He was thirty-five years of age and she seventeen. She established a good character for truth and veracity, and for virtue and chastity. She stated that she refused to have sexual intercourse with the defendant until he assured her that without it be could not help her, and that she thought that as he was a doctor he ought to know.

Held: That if her statement was believed defendant came within the meaning and intent of the statute (Code of 1919, section 4410).

15. SEDUCTION — Evidence — Corroboration of Prosecutrix's Evidence — Code of 1919, Section 4413. — Under section 4413 of the Code of 1919, there can be no conviction of seduction based on prosecutrix's testimony "unsupported by other evidence" — that is, evidence which does not emanate from the mouth of the female seduced or rest wholly upon her credibility. The corroborating evidence must be other evidence which adds to, strengthens, confirms and corroborates her. If there be evidence so tending to corroborate, its weight is a question for the jury under proper instructions from the court.

16. SEDUCTION — Conflicting Instructions — Preponderance of Evidence. — In a prosecution for seduction, an instruction for the Commonwealth standing alone was amenable to objection as leading the jury to believe that they could convict the accused on a mere preponderance of evidence. Another instruction given for the defendant fully covered the subject of proof beyond a reasonable doubt, and the jury could not have been misled.

Held: Not reversible error.

17. INSTRUCTIONS — Witnesses — False Testimony of a Witness — Disregarding all the Testimony of Such Witness. — In a prosecution for seduction, the court instructed the jury that if they believed that one or more of the witnesses testified falsely about any material point, they might disregard the whole of the testimony of such witness or witnesses. The instruction omitted the word "knowingly" or any equivalent word, such as "willfully," or "intentionally," before the word "testified."

Held: That the omission of the words "knowingly," etc., was error.

18. INSTRUCTIONS — Witnesses — False Testimony of a Witness — Disregarding all the Testimony of Such Witness. — Where the court instructed the jury that if they believed that one or more of the witnesses had "testified falsely" about any material point in his or her testimony, they might disregard the whole of the testimony of such witness or witnesses, the words "testified falsely" are not the equivalent of "knowingly testified falsely."

19. INSTRUCTIONS — Witnesses — False Testimony of a Witness — Disregarding all the Testimony of Such Witness. — An instruction that if the jury believed that a witness or witnesses, naming them, knowingly testified untruthfully on any material matter, they were at liberty to disregard the whole of the witness' or witnesses' testimony, is error, as naming a particular witness or witnesses.

20. INSTRUCTIONS — Witnesses — False Testimony of a Witness — Disregarding all the Testimony of Such Witness. — If it is an admitted or uncontroverted fact, or there is clear and convincing evidence in the case that a witness or witnesses therein has or have wilfully, or which is the same thing, knowingly, testified untruthfully on any...