Mccann v. Commonwealth

• Citation: 4 S.E.2d 768
• Court: Supreme Court of Virginia
• Decision Date: 09 October 1939
• Parties: McCANN. v. COMMONWEALTH.

4 S.E.2d 768

McCANN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 9, 1939.

Rehearing Denied Nov. 24, 1939.

Error to Corporation Court No. 2 of Norfolk; James U. Goode, Judge.

John Henry McCann was convicted for attempt to rape an infant under the age of eight years, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J„ and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

James G. Martin & Son, of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Walter E. Rogers, Sp. Asst. Atty. Gen., for the Commonwealth.

CAMPBELL, Chief Justice.

Plaintiff in error, John Henry McCann, was tried by a jury upon an indictment charging him with an attempt to rape Jean Walker, an infant under the age of eight years. He was found guilty and his punishment fixed at death. In accordance with the verdict of the jury, the trial court sentenced him to be electrocuted as provided by statute.

The case presented by the Commonwealth is as follows: On the 13th day of February, 1939, between six and six thirty, P. M., Jean Walker, the victim of the attack, and a younger girl, were playing on the front steps of a church in the vicinity of Jean Walker's home, when they were accosted by the accused with whom they were unacquainted. He asked them if they wanted a dollar. They answered in the affirmative and he directed them to go to a vacant house three doors away and get some coal, which he said was there. Jean went to the house, looked in an open window, and not seeing any coal, came back and reported that fact to accused. Thereupon, the accused stated, "That's the house right here." Then the accused took the two children to the vacant house and proceeded down a lane adjacent to the house and stopped in front of a broken window frame. He lifted the children through the broken window frame into the first floor of the house, and not finding any coal, he then directed the children to go upstairs to the second floor. When the trio reached a room on the second floor of the house, accused commanded the companion of Jean to stand in a corner. He then told Jean to pull down her pants, pull up her dress and lie on the floor with her legs as wide open as she could get them. Accused then took off his coat, unbuttoned his pants and got on top of the child, after striking a match arid looking at her vagina. He then asked her, "Has this ever happened to you?" She said, "No." He then put his hand between her legs. Jean then told accused she did not want any money, that she wanted to go home. Thereupon, accused began to choke her, stuck a knife under her chin and told her to be quiet. He then said, "If you don't shut up I'll kill you so you'll never see your mamma and daddy again." At this juncture, H. M. Humphries (whose evidence will hereafter be referred to) appeared on the scene and ordered accused to, "Stand where you are." Instead of obeying this command, accused arose, ran to the window and jumped out, just as Humphries fired at him two shots from a pistol.

H. M. Humphries, a witness for the Commonwealth, testified: On Monday, the 13th day of February, 1939, at "about" 6:15 P. M., he was working on an automobile near his residence situated at 945 Sheldon avenue, when a lady (Mrs. Linman) accosted him and inquired, "Did you see a colored fellow go by with a couple of children and go up side this vacant house?" He answered in the negative, and she said: "Well he went up side this vacant house--he's up to something." He went in his house, procured a pistol and went to the side of the vacant house but did not hear voices. He entered the house and crept up the stairs to the second floor, and when he reached the room he saw the form of a man on all fours. He did not shoot as he knew the children were in the room, but commanded the man to stay where he was, telling him that he had him "covered." The man "made a leap like a frog" through the doorway and he fired at him twice as he passed out of the room. He then saw the two children in the room, and Jean was frightened and asked him not to kill her. He told her, "I'm not after you, I'm after the man." The children, he said, left the house ahead of him, and it was too dark in the house to note the condition of Jean's dress.

Mrs. L. N. Linman, a witness for the Commonwealth, testified that she lived at 951 Sheldon avenue near the home of Jean Walker with whom she was acquainted; that on February the 13th, 1939, she had been listening to her radio; that she turned off the radio at 6:15 P. M. and walked to her front door; that she saw Jean Walker and another child playing on the steps of the church; that she saw a colored man approach the children, speak to them and then make a motion as if to leave them; that he then retraced his steps and the children started down the street; that the man motioned to the children; that they entered a lane at the vacant house; that she had a "surmise" and started to follow the man; that on the way she met a man and told him she had seen a colored man going with two children across the street and asked him to follow her, which he did; that she entered the lane and walked back to the rear of the vacant house; that she listened to ascertain if the children were in the house; that she heard "Jean Walker pitifully pleading with the man to allow her to go home to her mother, " that she then notified Humphries that the children were in the house; that he entered the house and she heard him speak to the man and tell him not to move, that he had him covered; that she heard a shot and a man, at a distance of an arm's length from her, jumped from the second story of the house; that the man who jumped out of the window was minus a coat and had a kinky head; that she went to the front of the house and met the children coming out.

It was further shown by the evidence adduced by the Commonwealth that a letter was found in a pocket of the coat leftin the house by the assailant of Jean Walker, addressed to "John H. McCann".

It was also shown that Jean Walker, both before and at the trial, positively identified the accused as her assailant.

The Commonwealth also proved by Mrs. Dorothy Walker that when she arrived home at approximately 6:30 P. M, her daughter Jean was "nervous and awfully upset" and told her "just what had happened to her."

The accused, testifying as a witness in his own behalf, stated that he asked Jean Walker to go to the vacant house; that he had no desire to harm her; that he had recently been released from the Massachusetts penitentiary, after serving a sentence upon a charge of attempted rape; that he took the girls to the house for the reason that he just wanted to "look at them in a practical way" and see if a grown man could penetrate a child; that he did not unbutton his pants, but did tell Jean to lie down on his coat, and to take off her pants and open her legs; that he got down on "all fours" and struck a match and looked at her; that he did not intend any more than to look at her.

The accused was defended by eminent counsel who concedes that the evidence is sufficient to warrant a verdict finding the accused guilty of the offense charged in the indictment.

It is assigned as error that the court erred "in overruling the motion to quash the indictment."

The basis of this contention is that the indictment shows upon its face that it "is scratched up and altered"; that "the Commonwealth made no explanation, and put on no evidence to show whether the alteration had been made before or after it was returned by the grand jury as a true bill." There is no merit in this assignment of error.

The original indictment is filed as an exhibit in the case and shows that it was drawn on paper containing a printed form originally designed for use as an information. This form was merely altered to conform to a proper form of an indictment and the blanks filled in with typewritten matter which conclusively demonstrates the charge against the accused.

In Mawyer v. Commonwealth, 140 Va. 566, 125 S.E. 317, 318, a" similar question was presented to the court and was disposed of in this language: "If there can be any fair doubt as to the conclusion just stated, the blank counts should be treated as surplusage. Unnecessary and redundant allegations never vitiate pleadings, and, when the crime is otherwise sufficiently charged, redundancy is rejected as surplusage."

If there was any doubt about the matter, it is dispelled by section 4875 of the Code, which reads inter alia: "No indictment or other accusation shall be quashed or declared invalid for the omission or insertion of any other words of mere form or surplusage."

The second assignment of error is as follows: "In overruling the objection of defendant to the testimony of the mother of the child as to the report told the mother by the child identifying defendant and saying what he had done to her."

This contention rests upon Bill of Exception No. 2, which reads thus:

"Be It Remembered, that on the trial of this case, during the taking of the evidence, as set forth in bill of exceptions, No. 1, to which reference is made as if fully copied herein, and during the taking of the testimony of the witness Mrs. Dorothy Walker, called on behalf of the Commonwealth, the defendant by counsel duly objected and excepted to that part of her evidence as shown by the following transcript, to-wit:

"By Mr. Arnold:

"Q. Mrs. Walker, you said, I believe, it was 6:30 when your little daughter reported something to you?

"A. Yes, sir.

"Q. I will ask you to tell the jury what she reported.

"Mr. Martin: I submit that's hearsay.

"The Court: What was the question? Repeat the question.

"Mr. Arnold: I asked her to tell the jury what complaint her little child made to her.

"The Court (addressing the witness): You can testify that a complaint was made, but the particulars of the complaint cannot be proved. You can testify that your child, if in fact it did, made a complaint, but the particulars of that...