Salyer v. Commonwealth
| Decision Date | 20 September 1934 |
| Citation | 163 Va. 1027 |
| Court | Virginia Supreme Court |
| Parties | RICHARD SALYER v. COMMONWEALTH OF VIRGINIA. |
1. RAPE — After-Discovered Evidence — Affidavits Requesting Dismissal of Prosecution — Case at Bar. — In the instant case, a prosecution for rape, one assignment of error dealt with after-discovered evidence; three affidavits made, after the trial, by the father and mother of the prosecutrix and by the prosecutrix herself. These affidavits added nothing to the evidence but merely requested that the prosecution be dismissed. It was admitted by the accused that these affidavits had no bearing on the case as after-discovered evidence.
Held: That the assignment of error need not be considered.
2. RAPE — Victim under Age of Sixteen — Birth of Child — Sufficient Evidence to Identify Assailant — Case at Bar. — In the instant case, a prosecution for statutory rape, the prosecutrix, a girl fourteen years old, testified that while returning from the home of the accused, carrying a pail of meal which she had borrowed there, she was seized by the accused, overpowered and forced to have intercourse with him. She made no outcry and first told of the offense when her pregnancy was discovered, assigning as a reason for her silence that she was afraid her parents would not believe her and would whip her. She testified that she had never had intercourse with the accused before and became pregnant from this sole act. She gave birth to a baby, born dead. The accused denied the charge, testifying that on the day in question he was at the bedside of his sick mother the entire day and he was corroborated by other members of his family.
Held: That the fact that the prosecutrix was raped by someone was conclusively established by the fact that she gave birth to a child for, being under sixteen years of age, any intercourse with her, by or without her consent, would be rape. The only doubtful question was the identity of the assailant and the jury rejected the denial of the accused that he was guilty, as they had a right to do.
3. RAPE — Victim under Sixteen Years — Any Intercourse with Girl under Sixteen Is Rape. — Where the prosecutrix is fourteen years of age intercourse with her is rape under the Virginia statute, regardless of whether it was with her consent or by actual force and against her will. Where the girl is under sixteen years and consents to the intercourse, constructive force is present.
4. RAPE — Victim under Sixteen Years — Birth of Child — Failure to Make Outcry — Case at Bar. — In the instant case, a prosecution for statutory rape, the failure of the prosecutrix to make an outcry or to notify any one of the offense was relied upon, largely as showing the incredibility of her testimony. The prosecutrix was fourteen years old at the time of the alleged offense. She kept silent until her pregnancy was discovered, giving as a reason that she was afraid her parents would not believe her and would whip her. She later gave birth to a child, which was born dead.
Held: That the accused having been indicted for statutory rape and the testimony having conclusively shown that the prosecutrix was fourteen years of age and that intercourse had been had with her, she having given birth to a child, the fact that she failed to make any outcry was not sufficient to warrant the Supreme Court of Appeals in holding that her testimony was so incredible that it could not be believed.
Error to a judgment of the Circuit Court of Wise county.
The opinion states the case.
D. F. Kennedy, for the plaintiff in error.
Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.
Richard Salyer, who was about eighteen years of age, was convicted of rape and his punishment fixed at five years in the penitentiary. The indictment charged the accused with statutory rape. The prosecutrix, Doris Kilgore, as charged in the indictment was fourteen years of age at the time of the alleged crime.
There are only two assignments of error. The second assignment deals with the question of after-discovered evidence. Three affidavits were made; one by Mitchell Kilgore, the father; another by Peggy Kilgore, the mother of the prosecutrix, and the last by the prosecutrix. These affidavits were made by these parties after the trial of the case. They added nothing to the evidence, but merely requested the court and the Commonwealth's attorney to dismiss the prosecution. It is admitted by the accused that these three affidavits have no bearing on the case as after-discovered evidence. This assignment therefore need not be further considered.
The second assignment of error charges that the verdict is contrary to the law and evidence and that the evidence is not sufficient to support the verdict of the jury.
This brings us to a consideration of the evidence upon which the verdict was founded. According to the testimony of the prosecutrix, she went to the home of Worley Salyer, the father of the accused, who lived across the ridge a distance of a quarter to a half mile from her home, and borrowed some meal which she carried in a bucket. On her return and within about two hundred yards of her home she was attacked by the accused who grabbed her, told her not to holler and took her down below the road in a "sink place in a hollow," overpowered her, and had intercourse with her against her will. This occurred in April, 1932, according to her testimony. She became pregnant and gave birth...
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Bridgeman v. Com.
...Clearly the birth of an infant, in most instances, proves that the mother and father have had intercourse. See Salyer v. Commonwealth, 163 Va. 1027, 1031, 175 S.E. 757, 759 (1934). Dr. Ryals conceded, however, that HLA test results can never conclusively prove the identity of that infant's ......