Powell v. Commonwealth, Record No. 2523.

Citation179 Va. 703
Decision Date08 June 1942
Docket NumberRecord No. 2523.
CourtVirginia Supreme Court

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. RAPE — Definition — Force Necessary to Constitute Offense. — 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.

2. RAPE — Evidence — Sufficiency to Justify Conviction of Attempted Rape — Case at Bar. — In the instant case, a prosecution for rape, the evidence showed that accused admitted his presence in the house of the prosecutrix on the night in question, admitted that the sex question was discussed and that he hugged and kissed the prosecutrix. He denied that he ravished or attempted to ravish the prosecutrix but she testified directly and positively that by the use of his manifest and superior strength, he threw her down on a lounge, then to the floor. She also testified that she threatened to scream and tried to scream but that he subdued her attempts and that through the application of force he succeeded in the crime charged. Within a few minutes after she escaped from the accused by a ruse she stated to the police and other witnesses that she had been ravished and named the accused, and her hysterical condition substantiated her testimony. An examination of the person of the prosecutrix disclosed a bruise or red whelp about the size of a man's hand on one of her legs above the knee. The jury found the accused guilty of an attempted rape.

Held: That the evidence clearly justified the conviction.

3. RAPE — Admissibility of Evidence — Chastity of Prosecutrix Not Involved Where Intercourse Denied — Case at Bar. — In the instant case, a prosecution for rape, accused assigned as error the action of the court in permitting the prosecutrix to testify that she was of previous chaste character and in refusing to permit accused to rebut this evidence. Accused did not rely upon the defense that the prosecutrix consented to the sexual act but denied the charge that he was guilty of sexual intercourse with the prosecutrix, either with her consent or by force.

Held: That there was no merit in the assignment of error since the question of chastity was in no sense involved.

4. RAPE — Admissibility of Evidence — Unchaste Character of Prosecutrix May Be Shown Where Defense Based upon Consent. — Where the accused in a prosecution for rape relies upon the defense that the prosecutrix consented to the sexual act, the previous unchaste character of the prosecutrix may be shown by proof of general reputation that she was a prostitute.

5. INSTRUCTIONS — Appeal and Error — Seriatim Discussion Unnecessary Where Jury Fairly Instructed. — Where a careful examination of instructions complained of clearly demonstrates to the Supreme Court of Appeals that the jury was fairly and properly instructed, it is unnecessary to enter upon a seriatim discussion of the instructions.

6. RAPE — New Trial — After-Discovered Evidence — Evidence Obtained by Improper Means — Case at Bar. — In the instant case, a prosecution for rape, accused assigned as error the refusal of the court to grant a new trial on the ground of after-discovered evidence. The after-discovered evidence consisted of affidavits from the prosecutrix in which she repudiated her testimony given at the trial and of another witness. On cross examination both the prosecutrix and the the witness repudiated their affidavits and the evidence showed that they were obtained by improper means by the father of accused and that he used intimidation, coercion, and undue influence in his dealings with the witnesses.

Held: That there was no merit in the assignment of error.

7. NEW TRIALS — Newly Discovered Evidence — Evidence Scrutinized with Care and Caution. — In view of the temptation to obtain a rehearing after an adverse verdict, particularly in a criminal case and in view also of the facility with which affidavits for this purpose can be obtained, all such evidence should be scrutinized with the greatest care and caution.

8. NEW TRIALS — Newly Discovered Evidence — When Conclusion of Trial Court Not Disturbed on Appeal. — Where affidavits for the purpose of obtaining a rehearing and other proofs are produced for and against, which are conflicting and contradictory, and of somewhat even balance, so that it requires a precise estimate to determine as to the greatest weight or preponderance, the trial court's conclusions will not be disturbed, unless they result in manifest injustice.

9. NEW TRIALS — Only One Fair and Regular Trial Accorded. — Every man is entitled to one fair trial, and no man is entitled to more.

10. NEW TRIALS — Newly Discovered Evidence — New Trial Not Favored. — Motions for new trials, because of after-discovered evidence, are not looked upon with favor.

Error to a judgment of the Hustings Court of the city of Roanoke. Hon. J. L. Almond, Jr., judge presiding.

The opinion states the case.

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

Abram P. Staples, Attorney-General, and Joseph L. Kelly, Jr., Assistant Attorney-General, for the Commonwealth.

CAMPBELL, C.J., delivered the opinion of the court.

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 committed 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 pounds and was five feet, four inches tall. The accused was nineteen years and ten months old, was five feet, eleven inches tall and weighed one hundred and seventy 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...

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