Powell v. Commonwealth

• Citation: 20 S.E.2d 536,179 Va. 703
• Parties: POWELL . v. COMMONWEALTH.
• Decision Date: 08 June 1942
• Court: Virginia Supreme Court

20 S.E.2d 536

179 Va. 703

POWELL .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 8, 1942.

Error from Hustings Court of City of Roanoke; J. L. Almond, Judge.

Lawrence Powell was convicted of attempted rape, and he brings error. Affirmed.

Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Arthur E. Smith, Walter H. Scott, and T. W. Messick, all of Roanoke, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., Asst. Atty. Gen, for the Commonwealth.

CAMPBELL, Chief Justice.

The accused, Lawrence Powell, was indicted for rape, by force, of Joyce Ann Akers. There was a trial by a jury which resulted in a verdict of guilty of attempted rape, and the punishment of the accused was fixed at confinement in the penitentiary for a period of five years. This verdict was carried into execution by the judgment of the court.

It is assigned as error that the court erred in refusing to set aside the verdict of the jury and grant a new trial on the ground that the verdict was contrary to the law and the evidence and without evidence to support it.

The case of the Commonwealth is predicated upon the following facts and circumstances, as found by the jury upon a conflict of evidence:

The crime was alleged to have been com mitted on the night of October 29, 1939. The prosecutrix was sixteen years of age on August 30, 1939. At the time of the alleged occurrence, she weighed 112 poundsand was five feet, four inches tall. The accused was nineteen years and ten months old, was five feet, eleven inches tall and weighed 170 pounds. The prosecutrix was employed by Mr. and Mrs. Ed. Prillaman, 1201 Campbell Avenue, Roanoke, Virginia, as a nurse for their infant child. Alma Prillaman and accused are second cousins and accused frequently visited the Prillaman home, which consisted of an upper flat, or apartment. On the night in question, the Prillamans were visiting friends in another part of the city and the prosecutrix was alone in the apartment, except for the baby.

The prosecutrix testified that between eight and nine o'clock on that night the accused called at the Prillaman home and inquired if the Prillamans were at home; that she answered in the negative; that he went upstairs to use the telephone, and in the meantime, two boys called and invited her to go to a show; that she declined, as she had to stay with the baby; that she then went upstairs where accused was; that he took hold of her and said: "Bopeep ain't you going to kiss me?" that she answered, "No, I am not going to kiss you; I am not that kind of a girl and I don't kiss boys;" that he then made an indecent proposal to her; that he began to scuffle with her; that he threw her on a lounge and took her "panties" off; that he then threw her down on the floor and got on top of her; that he was holding her hands with one of his hands; that he exposed his privates and succeeded in partially entering her person; that during the scuffle she attempted to scream and call upon the tenant in the room below for help; that accused then put his hand over her mouth and said, "Damn you, if you say anything, by God, I'll kill you;" that she was scared; that his expression was awful; that she then told accused that if he would raise the window she would do what he wanted her to do; that he got up to raise the window and she ran downstairs into the yard and screamed and hollered; that Polly Taylor, her next door neighbor, was on the porch and that she told her, "He threatened to kill me;" that after she screamed for Polly, accused came out of the house and ran across the yard.

What then transpired was narrated by Miss Taylor. She testified that she lived next door to the Prillamans and that on the night of October the 29th she had attended church services; that as she arrived home she heard someone scream that she saw "this boy" run across the yard; that Joyce Ann came around the side yard; that she was screaming and crying and hollering; that she asked, "What is the matter?" that Joyce Ann was so excited she was unable to tell her; that she did state, "He threatened to kill me;" that she then asked her to call the Prillamans; that she screamed and started crying and then gave the 'phone number of the Prillamans.

J. H. Puckett, a police officer of the city, testified that in response to a 'phone call which he received about 9:30 o'clock on the night of the occurrence, he went to the Prillaman home; that he saw Mrs. Prillaman who seemed like she was under a great strain; that she informed him that Joyce Ann would tell him what had occurred; that he went upstairs where the girl was; that she was "all broken up;" that her condition was such that she couldn't talk; that she was in hysterics; that finally Joyce Ann told him that the accused came to the house and attacked her. Without objection, the witness stated in detail the occurrence as related to him by the prosecutrix. As his version of the affair borders on the nauseous, we shall not repeat it. However, it must be stated that the evidence adduced revealed an appalling situation. The officer, Puckett, further stated that he had Mrs. Prillaman examine the prosecutrix in his presence; that the examination revealed a large red spot about four inches long in the shape of a hand on the leg of the prosecutrix.

Mrs. Prillaman testified that her examination of the prosecutrix did not reveal any serious injury to her person and that she was not examined by a doctor.

Testifying in his own behalf, the accused stated that, at the solicitation of the prosecutrix, he did kiss the prosecutrix and indulged in what he termed "a little petting." He denied specifically the charge of rape and denied in toto the charge of sexual intercourse. As a further defense, the accused introduced witnesses in an effort to prove that the prosecutrix had made inconsistent statements in regard to what had occurred at the Prillaman home.

It was also shown in cross-examination of prosecutrix that she did not strike the accused, scratch him or kick him during the attack. The reason she gave for not doing any of the above-mentioned things was that he held her hands; that she wastrying to push him off of her; that she was scared.

This is not a case of admitted sexual intercourse and a reliance, as a defense, upon the consent of the prosecutrix. The case of the Commonwealth is based upon the evidence to sustain a charge of forcible rape. The case of the accused rests upon his denial of the commission of the overt act.

"In order to constitute the offense of rape, force must be used. It is a necessary ingredient of the crime; and that force must be such as may reasonably be supposed adequate to overcome the physical resistance of the woman upon whom the rape is charged to have been committed, taking into consideration the relative strength of the parties, and other circumstances of the case * * * such as making outcries and giving alarm." Ming's case (Mings v. Commonwealth), 85 Va. 638, 639, 8 S.E. 474, 475.

The contention of counsel for the accused, that the evidence of the prosecutrix is inherently incredible, is fully answered in the written opinion of the learned trial court filed with the record. On this phase of the case we quote as follows:

"It seems clear to me that an analysis of the testimony introduced on behalf of the Commonwealth disclosed every essential element of the crime as charged in the indictment. The accused admits his presence in the home of the prosecutrix on the night in question; he admits that the sex question was discussed and admits hugging and kissing the prosecutrix. He emphatically denies that he ravished or attempted to ravish her. On the other hand, the prosecutrix directly and positively testifies that the accused made amorous advances which she rejected; that he made an indecent proposal; that by use of his manifest superior strength, he threw her down on the lounge and then to the floor; that she threatened to scream and tried to scream; that he subdued her attempt to cry for assistance with threats and force; that he held her and through the application of force overpowered her physically and consummated the crime charged. She further testified that she rejected his advances; that she rebuffed his proposal and resisted him with all the strength she could muster, finally extricating herself from his physical embrace through a ruse with reference to opening a window. The testimony further shows that she ran from the house screaming and calling for assistance; that as she made the immediate outcry she was crying, and in a highly nervous state. Within the space of a few minutes thereafter, when the Prillamans arrived and a police officer arrived at the scene, she stated that she had been ravished and named the accused. Her outcry and hysterical condition, abundantly established by competent proof, is a significant fact. A further fact seriously damaging to the accused is disclosed by the testimony of a disinterested witness to the effect that while the prosecutrix in her paroxysm of hysteria was making her first and immediate outcry, which named the defendant, a man was seen to run across the yard and jump over or off of the retaining wall in front of the Prillaman home. There is no testimony in the record directly...