Snead v. Commonwealth

• Decision Date: 17 January 1924
• Citation: 121 S.E. 82
• Parties: SNEAD. v. COMMONWEALTH.
• Court: Virginia Supreme Court

121 S.E. 82

SNEAD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 17, 1924.

Prentis, J., dissenting.

Error to Circuit Court, Nelson County.

E. Lawson Snead was convicted of seduction, and he brings error. Reversed, and new trial awarded.

The accused was convicted of the offense of the seduction of an unmarried woman of previous chaste character under a promise of marriage.

One of the assignments of error is that the commonwealth was allowed, over the objection of the accused, to introduce in evidence the following letter addressed to the accused, which the prosecutrix testified she wrote after the seduction and prior to the birth of the child; and which the father of the prosecutrix testified he saw on a subsequent occasion fall out of the coat pocket of the accused:

"Schuyler, Va., Sunday A. M.

"My dear Lawson: I will write you this morning thinking how you are treating me you know how good I have been to you and now for you to do me this way. I wrote you two letters about it, asking you what you were going to do and you never said a word.

"But please answer this say yes or no. It makes no difference with me. So answer and give to me by tomorrow night. If not I'm going to tell papa all about it and he can come and see you as you wont tell me anything so ans and give to me by tomorrow night. I heard you and Ruby Carter were going to get married and if you do it will certainly go hard with you. Prom Jack Ragland.

"P. S. Please ans. & tell me something by tomorrow night."

The uncontroverted evidence is that the accused did not invite or reply to, or in any way acknowledge the receipt of, this letter, nor in any way act upon it.

Other facts and circumstances are referred to in the opinion.

Perkins, Walker & Battle and McNutt & Rinehart, all of Charlottesville, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court.

The questions presented by the assignments of error which we find it necessary to decide will be disposed of in their order as stated below.

1. Is the letter of such character and the whole case presented to the jury such that it appears to be more probable than otherwise that the jury were influenced to some extent by the letter in returning the verdict against the accused, so that the admission of the letter in evidence, if erroneously admitted, constitutes reversible error?

The question must be answered in the affirmative.

The letter, in its opening sentence, conveys the meaning that the prosecutrix charged the accused with treating her wrongfully by his conduct, which conduct, the succeeding portions of the letter charge, amounted to a crime, else why the threat of prosecution contained in the last sentence of the letter; and when the whole letter is read in the light of the purpose for which it was offered in evidence, as stated before the jury by the prosecuting attorney, and of the circumstances under which it was written, in accordance with the testimony of the prosecutrix, it seems plain that it contains the charge that the accused was guilty of the crime for which he was indicted, namely, of seduction under the promise of marriage; and the jury evidently so construed it and thus treated the letter as evidence in corroboration of the testimony of the prosecutrix.

As shown by the record, the purpose for which the letter was introduced in evidence was, as stated before the jury by one of the prosecuting attorneys, as follows:

"Now she [the prosecutrix] has testified that this man had promised to marry her, and we want to introduce that letter to show that she relied on his promise and wrote to him to come and many her when she was in that fix."

The prosecutrix testified on the subject of the latter in substance as follows: That the child was born on May 8, 1922 (which by the calendar was Monday). That she wrote the letter on a Sunday morning in the year 1922 (which other testimony in the record shows must have been on some Sunday in 1922 prior to the Monday which was May 8, 1922, but there is no testimony or other evidence indicating whether this was on the Sunday immediately prior to May 8th or on what other Sunday in 1922 prior thereto). That she wrote the letter so that accused would marry her. That she did not use the word "marry" in the letter, but by it asked accused to answer whether he was going to marry her. That the accused understood the letter, "because he had been told about it." That he had promised to marry her, but had never told her "when."

Without the letter and without the testimony of the father that when called to account by him the accused admitted the seduction under promise of marriage, the case for the commonwealth rested wholly upon the uncorroborated testimony of the prosecutrix. This conclusion follows from the fact that the record discloses, even taking the testimony of the prosecutrix and the other testimony for the commonwealth at its face value, an entire absence of any conduct of the accused whatsoever, at any time, making any public manifestation of devotion to the prosecutrix or evidencing to others the existence of any promise to her of marriage. The case is on all fours with Riddleberger v. Commonwealth, 124 Va. 783, 97 S. E. 310, only it is strikingly more meager of circumstances of conduct evidencing any kind of social relations existing between the parties than in that case, if we leave out of view the letter and the testimony of the father as to the admission of guilt aforesaid.

With respect to the father's testimony, this will be said: It was given before the jury in a manner, which, as it appears in the record, would seem to affect its credibility. It is true that it was for the jury, and it Is not for the court, to say whether the father was truthful in his belated statement containing this testimony, made after having expressly testified that what he had previously narrated "was all that was said, " and in answer to a leading question from the prosecuting attorney; and, if the verdict rested upon that testimony alone to corroborate the prosecutrix, the court could not disturb the verdict. But did the jury reach their verdict upon that testimony alone? It seems to us, to say the least on the subject, that it is more probable than otherwise, from the situation disclosed by the record, that the jury gave some weight to the aforesaid letter as being evidence, as aforesaid, in corroboration of the testimony of the prosecutrix, and that this had some influence upon their verdict against the accused. This being so, if the letter was erroneously admitted in evidence, it is reversible error.

We now come to the consideration of the question upon which the decision of the case on the appeal turns, namely:

2. Was the letter aforesaid admissible in evidence in the case?

The question must be answered in the negative.

We have not been able to find any authority under the holding of which, as far as we can see, it can be said that the letter was admissible, and upon principle we do not think that it was admissible in evidence.

According to the general rule, stated in Wharton's Cr. Ev. (10th Ed.) § 682, the letter was inadmissible in evidence.

The general rule mentioned as stated in the authority just cited is as follows:

"The fact that an unanswered letter or other paper is found in the custody of a party, but not acknowledged by him, is not ground for the admission of the paper as evidence against him. Were it admitted, an innocent man might, by the artifices of others, be charged with a prima facie case of guilt which he might find it difficult to repel. It is otherwise, however, when the party addressed in any way invited the sending to him of the letter, or when there is any ground to infer he acted on the letter. Where such tacit recognition is claimed, the whole conversation or correspondence which constitutes the recognition must be given."

It is true that, speaking generally and exclusively of "Private writings and publications, " constituting "documentary evidence, " in 2 Wharton's Cr. Ev. § 527d, this is said:

"The reception of such evidence rests in the discretion of the trial court and his ruling will not be disturbed unless an abuse of the discretion is shown."

But an examination of the note to this section discloses that reference is made to no case in which any letters are held admissible in evidence in a criminal case against the accused, other than his own letters or those of some accomplice in the crime charged.

In 2 Wigmore on Ev. p. 1264, this is said:

"So far as any definite rule is concerned then, it seems impracticable; and the precedents indicate that each case must stand on its own facts."

But this is said concerning civil cases exclusively, and is confined in its scope to "documents of demand, received but not answered, " involved in civil cases of actions for money had and received or actions of that nature, as appears from the same work, pages 1261 and 1264, note 3. It is elementary that in such cases proof of demand upon or notice to the defendant by the plaintiff before suit is, in some instances, admissible as a material circumstance, and a letter from the plaintiff to the defendant containing such demand or notice is, of course, admissible in evidence for that purpose, but for that alone.

One of the earlier cases on the last-named subject is that of Fairlie v. Denton, 3 C. & P. 103, 14 Eng. Com. Law Rep. 225, which was an action for money had and received. The plaintiff wrote a letter to the defendant which the defendant did not answer. At the trial the plaintiff's counsel called for the letter, under notice to produce, with a view to reading it in evidence as a part of the plaintiff's case.

Counsel for the defendant objected to the admission of the letter on the ground—

"That an unanswered letter, written by the plaintiff, was not evidence in his own favor; for otherwise a party would only have to...