Strawderman v. Com.
| Decision Date | 04 May 1959 |
| Docket Number | No. 4928,4928 |
| Citation | 200 Va. 855,108 S.E.2d 376 |
| Parties | KIRBY STRAWDERMAN v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
Donald D. Litten (George D. Conrad, on brief), for the plaintiff in error.
John W. Knowles, Assistant Attorney General (Albertis S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
Strawderman was convicted of the rape of Mary Elizabeth Miller, a female child under the age of sixteen years. Code, § 18-54. The jury fixed his punishment at forty years in the penitentiary. A motion to set aside the verdict was overruled, judgment entered, and the accused sentenced in conformity with the verdict. We granted him a writ of error.
The narrative statement of the testimony of the witnesses for the Commonwealth (no evidence being introduced on behalf of the accused) discloses that on Christmas Day, 1957, Strawderman, a nephew of Clifton Miller, visited the Miller home, arriving there about twelve o'clock noon; he asked permission of the parents to take Mary Elizabeth, the five-year-old daughter 'to get some candy' as he had done on previous occasions, and when permission was granted he took the child with him; they drove to Dove's store in Rockingham county, and finding it closed, drove to Benny Carr's store where he purchased two or three bottles of Coca-Cola and a candy bar. According to Deputy Sheriff Spitzer, Strawderman stated that Mary Elizabeth did not get out of the car, was never out of his sight during the trip, and they never left State Highway No. 259. Returning to the Miller residence at approximately 1:30 p.m., Strawderman let the child out of his car but did not go in with her.
When Strawderman and Mary Elizabeth left the home Clifton Miller, father of the child, went to sleep and was awakened about 1:30 p.m., by the entrance of Mary Elizabeth into his room. She stood inside the door for a period of time which Miller estimated to be between 15 and 30 minutes, and did not say anything. When Mrs. Miller came in she examined the child and found some blood on her panties and legs.
Over the objection of the accused Mrs. Miller testified that the child stated to her that 'Kirby [Strawderman] hurt her.' On cross-examination Mrs. Miller said 'it was only after she interrogated Mary as to whether Kirby had harmed her that the child made an affirmative answer.' The father also was permitted to testify that the child told her mother in his presence that 'Kirby hurt her.' The jury was later instructed to disregard both statements.
The family having no means of transportation immediately available the child was not subjected to a physical examination by a medical doctor until the next day when she was taken to the office of Dr. Charles W. Hertzler in Bergton. Dr. Hertzler's examination of the child's genitals revealed a somewhat bloody 'spread apart' vagina within which the hymen and surrounding tissues were torn. He testified that in his professional opinion the injury was caused by a male penis, adding that any other possibility was so remote that 'he did not give it a second consideration', there being no visible bruises, scratches or cuts in or about the area.
Over the objection of the accused, Dr. Hertzler testified that he knew the Millers and that the father was a day laborer who always paid his bills, and that the mother was a 'high moron'.
Strawderman's white shorts, grey shirt, and the handkerchief (found in his car), together with the panties worn by Mary Elizabeth were forwarded to the Federal Bureau of Investigation, and counsel for Strawderman and the Commonwealth's Attorney entered into a stipulation that the laboratory report disclosed: The presence of two small stains of human blood on the handkerchief, and the presence of stains of human blood in the crotch area of the child's panties; that there were no stains of blood on the shirt or white shorts; that the blood was not susceptible of grouping; the presence of a seminal stain containing spermatozoa on the fly of the man's white shorts; an absence of semen on said pair of child's panties, on said man's grey shirt, and on said white handkerchief; that if an expert from the FBI laboratory were present he would testify that he was unable to state the length of time said seminal fluid found on said white shorts had been present.
There are four questions involved on this appeal. The first is: Did the court err in permitting Dr. Hertzler to testify that the father of the child was a day laborer and always paid his bills, and that the mother was a 'high moron'? The Attorney General says in his brief, 'The Commonwealth cannot argue seriously that the testimony objected to was material to the issue, but it does state emphatically that no injury to Strawderman could have resulted from its admission.'
In view of the ultimate disposal of the case, the alleged error, whether harmless or not, will not likely recur.
The same applies to the second question: Did the court err in permitting Mr. and Mrs. Miller to testify as to what Mary Elizabeth stated, which testimony the court ultimately instructed the jury to disregard.
The third question is: 'Did the court err in granting Instruction No. 5?' This instruction, offered by the Commonwealth, dealt with the burden of proof, and it is argued by the accused that the concluding paragraph which read, 'If, on the other hand, after an impartial and reasonable consideration of all the evidence in the case, you have an abiding conviction of the truth of the charge, you are then satisfied beyond all reasonable doubt,' should have read, 'If * * * you have an abiding conviction to a moral certainty of the guilt of the accused, you are then satisfied beyond all reasonable doubt.'
Suffice it to say, as conceded by the accused, the instruction as given has been approved by this court. Anthony v. Commonwealth, 142 Va. 577, 579 (Headnote 13), 128 S.E. 633. Hence, it was not error to give the instruction. It should be remembered, however, that on numerous occasions we have stated that instructions...
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Shaikh v. Commonwealth, Record No. 2614-03-4 (VA 1/25/2005)
...S.E.2d 688, 692 (1976)). 5. We expect jurors to understand, for example, the meaning of "reasonable doubt," Strawderman v. Commonwealth, 200 Va. 855, 858, 108 S.E.2d 376, 379 (1959), the term "probability," Roach v. Commonwealth, 251 Va. 324, 346, 468 S.E.2d 98, 111 (1996), and the phrase "......
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Tuggle v. Com.
...by force and against her will. Dusenbery v. Commonwealth, 220 Va. 770, 772, 263 S.E.2d 392, 394 (1980); Strawderman v. Commonwealth, 200 Va. 855, 858, 108 S.E.2d 376, 379 (1959); Bradley v. Commonwealth, 196 Va. 1126, 1135, 86 S.E.2d 828, 833 (1955). To establish that sexual intercourse occ......
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Lansdowne v. State
...Palumbe, 327 A.2d 613, 616 (Me.1974); State v. Black, 116 N.H. 836, 837-38, 368 A.2d 1177, 1178-79 (1976); Strawderman v. Commonwealth, 200 Va. 855, 858, 108 S.E.2d 376, 379 (1959).6 Courts in other jurisdictions which have considered this question agree. Blatt v. United States, 60 F.2d 481......
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Tuggle v. Thompson
...involve vaginal injury and unequivocal expert testimony that penetration of the vagina by a penis had occurred. Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376 (1959) (finding it to be "common knowledge" that vaginal injuries could have been caused by means other than penetration, ......