Thomas v. Commonwealth

• Decision Date: 14 March 1907
• Citation: 106 Va. 855,56 S.E. 705
• Court: Virginia Supreme Court
• Parties: THOMAS. v. COMMONWEALTH.

106 Va. 855

56 S.E. 705

THOMAS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 14, 1907.

On Rehearing, March 27, 1907.

1. Criminal Law—Appeal—Review—Necessity of Exceptions.

A ruling of the trial court, to which no exception was taken, will not be reviewed on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2656.]

2. Same—Sufficiency of Evidence.

On appeal in a criminal case, in reviewing the denial of a motion for a new trial for insufficiency of the evidence, a new trial will not be awarded unless it appears that the evidence is plainly insufficient to warrant the finding of the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3226.]

3. Rape—Evidence—Sufficiency.

On a prosecution for rape, evidence held sufficient to warrant a conviction.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Rape, §§ 71-84.]

On Rehearing.

4. Criminal Law—Appeal—Review—Sufficiency of Evidence.

By the express provisions of Code 1904, § 3484, the evidence on a motion to set aside a verdict as contrary to the evidence in a criminal, as well as in a civil, case, is ta be considered on appeal as on a demurrer to the evidence.

5. Rape—Appeal—Review—Sufficiency of Evidence.

Rev. Code, § 3484, provides that the evidence, on a motion to set aside a verdict as contrary to the evidence, shall be considered on appeal as on a demurrer to the evidence. Held, that the identification of defendant by prosecutrix, although uncorroborated, is not insufficient to support a conviction.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Rape, §§ 83-84.]

6. Criminal Law — Trial — Objections to Evidence.

A general objection to evidence, which is in part admissible, is insufficient.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1633-1638.]

7. Same—Appeal—Scope of Review—Necessity of Exceptions.

An objection to evidence cannot be considered on appeal, where not preserved by a proper bill of exceptions.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2816.]

8. Same—Compelling Allowance.

Where the trial court, in a criminal case, refuses to sign a proper bill of exceptions, mandamus will lie to compel such action.

Whittle and Cardwell, JJ., dissenting in part.

Appeal from Circuit Court, Alexandria County.

Joseph Thomas, alias John Wright, was convicted of rape, and he appeals. Affirmed.

J. E. Clements, for appellant.

The Attorney General, for the Commonwealth.

BUCHANAN, J. The plaintiff in error was indicted for rape. Upon his trial the jury found him guilty, fixed his punishment at death, and the trial court entered Judgment in accordance with the verdict. To that judgment this writ of error was awarded.

Several grounds of error are relied on in the petition and in the written and oral argument of counsel for the accused, but the record does not show that any exception was taken to the rulings of the trial court, except its refusal to set the verdict aside because contrary to the law and the evidence, and its overruling the motion of the accused in arrest of judgment The refusal of the court to set aside the verdict and to arrest the judgment are therefore the only assignments of error that can be considered by this court.

It is settled law in this state that motions for new trials are governed by the same rules in criminal as in civil cases. Vaiden Case, 12 Grat. (Va.) 717, 727.

It is also well settled that an appellate court, upon a motion to grant a new trial because the verdict of the jury is contrary to the evidence, will not reverse the judgment of the trial court and award a new trial unless It finds that the evidence, considered as on a demurrer to evidence, is plainly insufficient to warrant the finding of the jury, and that the appellate court will not be justified in granting a new trial, even if its members should think that if they had been on the jury they might have found a different verdict. Hill's Case, 2 Grat (Va.) 595; Kates' Case, 17 Grat (Va.) 561; Bulls' Case, 14 Grat. (Va.) 613, 621, 622; Robertson's Case, 2 Va. Dec. 142, 22 S. E. 359; Nicholas' Case, 91 Va. 741, 755, 21 S. E. 364.

It is insisted that the verdict is not sustained by the evidence upon three grounds: (1) That the corpus delicti was not proved; (2) that the accused was not identified as the party who committed the offense; (3) that the evidence shows that the accused could not have been present when the crime was perpetrated.

The corpus delicti, and the identity of the accused as the perpetrator of the crime, were testified to directly and positively. The record shows that on the evening of September 9, 1906, which was Sunday, Forest Gooding and Mabel Risley, who were then engaged to be married and who were married before the trial of this case, went to Luna Park in Alexandria county. They spent the evening in the park, visiting places of amusement until the lights were turned on. They then left the, park and strolled up the road between the street car tracks and the park fence, and at the end of the fence turned to the left and walked along a path which led to a spring in the woods. After going a short distance beyond the spring they turned to come back, when they saw a negro man lying or sitting down near the path. When they got opposite to him, he arose, with a pistol in one hand and a club about three feet long' and two inches in diameter in the other hand. He pointed the pistol at Gooding and toldhim he was going to kill him, and after some words struck Gooding, who attempted to ward off the blow, on his left shoulder and on the left side of his head, but did not knock him down. Gooding turned around and went a few steps, when he fell to his knees from the force of the blows. He got up and ran towards the park gate for help, and in a few minutes came back with some members of the special police force. After Gooding was struck, Miss Risley started to run, whereupon the negro aimed his pistol at her and told her he would kill her if she ran. She stopped, and he seized her by the throat. While he was choking her, she screamed "Murder!" and he again threatened to kill her. He then threw her down, placed his hand over her mouth, and, notwithstanding her struggles and efforts to prevent it, ravished her, and afterwards robbed her of $16.03 and two gold rings and walked off. Immediately afterwards, and while Miss Risley was getting up, Gooding and a special police officer arrived. In a few minutes other members of the police force reached her. She at once told them that she had been ravished and robbed by a man whom she described as a big, square shouldered, black negro, wearing dark clothes, whom she could identify anywhere, and that she could recognize his voice anwhere. The evidence also showed that there were bruises upon her neck and legs, and her private parts were swollen.

On the 16th of September, a week after the assault, the accused was arrested upon another charge, upon which he could not be held, but was detained in custody because he answered in a general way the description given at police headquarters of the assailant of Miss Risley. On the 22d of that month Miss Risley, together with Gooding, was brought to the jail where the accused was in custody with a number of other prisoners to see if she could Identify her assailant She was told by the officer who accompanied her to look at the prisoners who were to be brought down without saying anything or pointing at any of them. Six or eight prisoners were then brought in, all of whom were negroes except one. After looking over the prisoners, the officer asked if she was satisfied, and she replied that she was. Upon going outside of the inclosure where the prisoners were, she was asked if she saw among them the man who had assaulted her. She replied that she did, and that he was the second man on the right. That man was the accused. The officer had the accused brought out where they were and spoke to him, in order that Miss Risley might hear his voice. She said again that she was sure he was the man—that she recognized him and knew his voice. Gooding also identified the accused at the jail as. the man who had assaulted him. Both Miss Risley and Gooding at the trial testified positively as to the identity of the accused, and when they were asked if they knew that their statements as to his identity might send him to the gallows they both replied that they did, but they were sure he was the man.

The precise time at which Miss Risley was assaulted does not clearly appear. The officers who accompanied or followed Gooding to the scene of the assault differ in their statements as to the time they reached Miss Risley, some fixing the time as early as 8 o'clock and one as late as from 8:15 to 8:30. Some of the witnesses say it was between sundown and dark, others not quite dark, and another "good dark." The evidence does not show that, when Miss Risley was assaulted, it was too dark for her to get such a view of her assailant as to be able to identify him. She stated that she did see him, and could recognize him anywhere. To the same effect was Gooding's statement The deputy sheriff, who did not reach Miss Risley until some minutes after the assault, testified that it was then light enough to recognize a person standing near.

The accused introduced several witnesses, who testified that they were present at the jail when Miss Risley claims that she recognized the accused as her assailant, and that she did not do so. Some of them say she pointed out a negro known as "Alabama Joe" as her assailant; another that she pointed out a negro named Johnson. These witnesses are not only contradicted by Miss Risley and the officer who took her to the jail, and who sustains her as to what took place there In every material particular, but they contradict each other.

To establish the alibi relied on, the accused testified that he had never seen Miss Risley until he saw her at the jail, and that on the...