Mcclain v. Commonwealth

• Decision Date: 07 September 1949
• Citation: 55 S.E.2d 49,189 Va. 847
• Parties: McCLAIN. v. COMMONWEALTH.
• Court: Virginia Supreme Court

55 S.E.2d 49

189 Va. 847

McCLAIN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 7, 1949.

Louis McClain was convicted of rape in the Circuit Court of Augusta County, Floridus S. Crosby, J., and he brought error.

The Supreme Court of Appeals, Buchanan, J., affirmed the judgment, holding that the evidence established commission of the crime in the county of venue and that the statute providing for investigation of and report on facts tending to show extenuating circumstances by a probation officer before imposition of sentence is mandatory and constitutional.

Before GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Curry Carter, Staunton, for plaintiff in error.

Attorney General J. Lindsay Almond, Jr., Assistant Attorney General C. Champion Bowles, for Commonwealth.

BUCHANAN, Justice.

The defendant was indicted for the rape of a 14-year-old girl (Code, 1942 (Michie), § 4414). Upon a plea of not guilty hewaived a jury, was tried by the court (Const, of Va., § 8; Code, § 4900, as amended, Acts, 1948, ch. 338, p. 634), convicted and sentenced to 16 years in the penitentiary.

The evidence for the Commonwealth was that on Saturday, July 26, 1947, the prosecutrix had been attending picture shows in Staunton. About five o'clock that afternoon she met defendant, a man 37 years old, on a street corner and he told her that her mother had asked him to bring her home. The prosecutrix lived with her mother and stepfather on Churchville avenue, in Staunton. Defendant told her that before taking her home he wanted to see part of a picture at the Visulite theater and she agreed to accompany him. It was getting dark when they left the theater and they went from there to the automobile of defendant, which was in a parking lot on Baldwin street. On leaving the parking lot, the defendant, with the prosecutrix in his car, drove west past Highland avenue and then turned right on a dirt road. After driving some distance on this road the defendant stopped his car at a place where there were no houses. He began to make advances toward the prosecutrix, which she repulsed. Becoming alarmed, she jumped out of the car, but he caught her, threw her down and ravished her. He then forced her back into the car, refused to take her home, but said he would take her to her grandmother's in Deerfield. They reached there about midnight. The defendant let her out and she went into the house. Her grandmother opened the door for her but no conversation occurred between them that night. The next morning the grandmother noticed the child's nervous condition and apparent illness and questioned her as to the cause. Thereupon the prosecutrix told her what had happened and showed her scratches and bruises on her body. The grandmother kept the prosecutrix in bed for several days and wrote about her to her mother, who came and got her. The following Saturday the child was taken by her mother to the sheriff of Augusta county, to whom she related what had happened and he noted her scratches and bruises. The next day she was examined by a physician, who found evidence of recent intercourse. The sheriff later talked with the defendant, who admitted being with the prosecutrix on the night in question but denied having sexual relations with her. The defendant admitted that the trip to the home of the grandmother, which was approximately 18 miles from Staunton, took four or five hours, but gave no satisfactory reason for this lapse of time.

The defendant offered no testimony in denial and the court certified that upon arraignment defendant's counsel admitted that the defendant had sexual intercourse with the prosecutrix but would not plead to the indictment, whereupon the court entered a plea of not guilty for him.

The first assignment of error is that the Commonwealth failed to prove venue; that is, that the offense occurred in Augusta county. The evidence for the Commonwealth was heard on October 5, 1948. At its conclusion the defendant moved to dismiss on the ground that the Commonwealth had failed to prove venue. At that time the prosecutrix had testified that the defendant had driven her in his car from the parking lot on Baldwin street, in Staunton, west to West Beverley street at the Thorn-rose cemetery, thence west on West Beverley street for a distance, past Highland avenue to a dirt road, on which they proceeded a distance to the point where the offense occurred. The sheriff had testified that when the prosecutrix was brought to him, he took her in his car along the route she stated that she had traveled, passed the intersection of West Beverley street and Highland avenue, which marks the corporate limits of the city of Staunton, proceeded west out West Beverley street extended on the Parkersburg pike, passed the intersection of this highway with the Frog Pond road, and passed the Forsythe place to the dirt road at Moore's filling station, leading off to the right and crossing to Route 250 at a point between Churchville and Staunton. He endeavored to have the girl identify the place on this dirt road where the offense occurred, but she could not do so, stating that it was dark at the time and she only knew that it was at a remote place where there were no houses.

The court certified that in taking judicial notice of the corporate limits of Staunton, he examined an official map of the city, which shows that the western line of the city runs diagonally through Highland avenue and that west of this line is the county of Augusta.

On convening next morning, October 6, the court stated that he had asked the sheriff to take his automobile and measure the distance from the parking lot to Highland avenue by the way the defendant traveled. The court had understood the prosecutrix to testify that they had driven two miles from this point to where the offense occurred. The sheriff thereupon testified that the distance between those points was 1.15 miles; that less than a block of Highland avenue immediately adjacent to its intersection with Beverley street was within the city limits; that Madison avenue, a dirt road, is the first street beyond Highland avenue that goes straight through from West Beverley street extended to the Churchville road, or Route 250, and that no part of Madison avenue was in the city of Staunton. Defendant's counsel then called the prosecutrix for further cross-examination, and on re-direct examination she stated that after the car stopped on the dirt road and the offense was committed, they drove on in the direction the car was headed and then turned off on the Churchville road and into Churchville; and that if Highland avenue was the end of the city limits, then the offense had taken place in Augusta county.

We agree with the court's holding that the evidence, coupled with judicial knowledge of the corporate limits, was sufficient to establish that the crime was committed in Augusta county.

Evidence to prove venue may be direct or circumstantial. West v. Commonwealth, 125 Va. 747, 99 S.E. 654. The facts proved may be aided by judicial notice of geographical facts that are matters of common knowledge, or shown by maps in common use. It was proper for the court to take notice of the official map of Staunton and of the boundaries of Augusta county, and to determine the question of venue on the basis of the facts proved and the fair inferences therefrom in the light of that judicial knowledge.

In Hart v. Commonwealth, 131 Va. 726, 735-736, 109 S.E. 582, 584, there was likewise a question whether the offense occurred in Staunton or Augusta county. We held it to be a geographical fact, "shown by any map in common use, and thus a matter of common knowledge, " that the city of Staunton is so located within the county of Augusta that the county surrounds it and extends for more than 15 miles to the west of the corporate limits, of which facts the court would take judicial notice. The opinion quotes from Wharton on Evidence, § 335, to the effect that courts will also take judicial notice of distances as calculated by a map. See also Randall v. Commonwealth, 183 Va. 182, 31 S.E.2d 571, where it is said that proof of venue is not required except upon timely objection, and where such objection is offered proof may be made by direct or circumstantial evidence or supplied by judicial notice.

The defendant argues that there were turns that the defendant could have made after passing Highland avenue that would have taken him and the prosecutrix back into Staunton. But it is clear from the evidence that they did not so turn, and that the offense occurred on a dirt road on which they turned to the right some distance beyond Highland avenue and thence proceeded over the same road in the same direction until they reached Route 250, between Staunton and Churchville, and then proceeded to Churchville, which is in Augusta county. The evidence and the judicial knowledge of the court furnish ample support for the conclusion that the offense was committed in Augusta county.

The second assignment of error is that the court received and considered evidence after the close of the case and out of the presence of the accused. This complaint is based on the ground that after the Commonwealth closed its case and the defendant had moved for dismissalfor failure to prove venue, the court consulted the map of Staunton and then asked the sheriff to measure the distance as above referred to. On convening next morning, the court announced these facts and stated, "This is all that has transpired since we left the courtroom yesterday afternoon." Thereupon, in the presence of defendant and his counsel, the court called the sheriff to testify as to his measurement, and defendant's counsel called the prosecutrix for further examination as to the place of the crime.

There was no error in this procedure. The order of introduction of testimony is for the determination of the trial court in the exercise of judicial discretion. Its exercise is controlled by the...