Tyree v. Commonwealth
| Decision Date | 14 October 1946 |
| Citation | 39 S.E.2d 627 |
| Parties | TYREE . v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Amherst County; Edward Meeks, Judge.
Joseph Marshall Tyree was convicted of seduction and he brings error.
Judgment affirmed.
Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, and SPRAT-LEY, JJ.
William Kinckle Allen, of Amherst, and Edward J. Hotchkiss, Jr., of Lynchburg, for plaintiff in error.
Abram P. Staples, Atty. Gen., and W. Carrington Thompson, Asst. Atty. Gen., for Commonwealth.
Joseph Marshall Tyree, the accused, was indicted, tried by a jury, and convicted of the seduction of Nancy Bryant. His punishment was fixed at two years in the penitentiary.
Nancy Bryant, who was 16 years of age at the time of the alleged seduction, had been reared in the rural section of Amherst county. She had attended the public schools of the county, and at the time she quit was in the first year high school. In 1943 she left home, went to Lynchburg and became employed in the plant of the Old Dominion Box Company. After a few months she stopped work and returned to her home in Amherst county. During the time she was in Lynchburg she made her home with her brother. In March, 1944, she returned to Lynchburg to work for the same company. She obtained board and lodging with Mrs. J. J. Tyree, the mother of the accused. Mrs. Tyree lived in Madison Heights, which is immediately across the James river from Lynchburg. The accused and his family also lived in the home of his mother, Mrs. Tyree. He was married in 1934, and is the father of two children, one 10 years of age, and the other 6. For approximately 20 years he had been employed by J. W. Wood and Company, a wholesale grocery concern in Lynchburg. The place of business of this company was directly across the street from the place of business of the Old Dominion Box Company.
The accused first met the prosecutrix in his mother's home, and the first time that he paid any attention to her was two weeks prior to May 24, 1944. At that time she was standing before a mirror in the bedroom of Mrs. Tyree, the mother, combing her hair. The accused came in, caught her around the shoulders, and told her that she was pretty enough without having to "fix-up". At noon on May 24, 1944, Nancy Bryant was standing in the window of the plant of the Old Dominion Box Company. The accused, who worked across the street, called to her and told her to meet him that night at 7:30 at the Academy Theatre on a business matter. When she arrived at the appointed place he told her he could not say what he wished to say at that place and suggested that they get in his car, whereupon they got in his car and he drove out on a lonely road in Amher*t county. Here he professed to love the prosecutrix. He told her that there was no affection between his wife and himself and promised to marry her. Later she yielded to him and had sexual intercourse. They continued this conduct on Monday, Wednesday, and Friday nights of each week.
The accused gave her presents. On one occasion he gave her a ring, and on another he presented her with a watch.
Late in July the prosecutrix discovered that she was pregnant, quit her job and went to the home of her sister in Amherst county. She told the accused of her condition. He accepted full responsibility for it and gave her medicine, a fifth of whiskey, and two pistols. In October, 1944, the prosecutrix's sister discovered that she was missing from home, and upon finding her some 250 yards from the house, the prosecutrix, who was crying, told her sister about her pregnancy. Later her father and brothers also learned of her condition.
In November the accused drove out to the sister's home to call upon the prosecutrix, as was his custom. Upon his arrival, her brother, who had been waiting for him, refused to permit his sister to leave with him. Then, at his suggestion, the accused and Nancy drove to the home of Nancy's father. There the accused told Mr. Bryant, the father, that he was responsible for Nancy's condition, and begged for a chance to get a divorce from his wife so he could marry Nancy. The father then told him to meet them the next day at the office of the Commonwealth's Attorney in Amherst. In the meantime the accused agreed to pay the board of Nancy at her sister's home at therate of $5 per week. He paid it for three weeks.
The parties met at Amherst the next day, and Mr. Bryant, the father, decided to allow the accused 60 days to arrange his affairs so that he could marry the prosecutrix. During the 60 days nothing happened. The accused pretended that everything would be all right in a few days, and that he would secure his divorce decree and marry Nancy. However, he continued to put it off. Later the accused proposed to compromise the matter by paying to the father of the prosecutrix the sum of $1,500. This was agreed upon and the accused agreed to bring the money and make the payment the next day. That night he telephoned that the proposition was all off and that he did not intend to negotiate any further. He was then arrested and indicted. Between the time that he was arrested on the warrant and the return of the indictment he continued to have sexual intercourse with the prosecutrix and attempted to elope with her. The child was born to the prosecutrix on April 21, 1945.
The defense consisted of a complete denial. The accused denied that he had ever been alone with the prosecutrix. His statement in this regard was contradicted by several witnesses who had no interest. On May 24, 1944, at the time of the alleged seduction, he claims to have gone to prayer meeting. He also claims that the prosecutrix accused him because she had seen him and his wife counting a sum of money and thought it a good opportunity to blackmail him. He admits that he paid her board, but claims that he did this in order to prevent the information from reaching his wife.
One George Campbell testified that he had had sexual intercourse with the prosecutrix on three occasions prior to the alleged seduction. He had lived in the Bryant home. However, the prosecutrix denied these acts, and considerable testimony was introduced by witnesses who stated that they would not believe Campbell on oath.
The prosecution was had under section 4410 of the Code of Virginia 1919, Code 1887, sec. 3677. That section reads as follows:
Under Code, 1919, sec. 4413, no conviction shall be had under sec. 4410 "on the testimony of the female seduced * * * unsupported by other evidence, nor unless the indictment shall be found within two years after the commission of the offense".
There were eight assignments of error. The first assignment is directed at instructions numbers 2 and 3, granted at the request of the Commonwealth. Those instructions are as follows:
The basis of the objection to instruction number 2 is that it assumes that there were admissions and surrounding circumstances that would corroborate the charge of seduction. It is contended that the instruction takes away from the jury the right to pass upon the question as to whether therewere any admissions or other surrounding circumstances.
There was very little conflict in the evidence regarding the incriminating circumstances and the admissions of the accused. In fact, the accused testified as to some of them. He testified that he paid the board of the prosecutrix for three weeks at $5 per week, and that he had been to the Bryant home in connection with the affair. He also testified that he had met the Bryants and the prosecutrix in the office of the Commonwealth's Attorney at Amherst to discuss the matter. His admissions, and the pertinent incriminating circumstances which were also detailed by several witnesses, were overwhelmingly established.
The testimony of the prosecutrix need not be corroborated in every detail. The statute (section 4413) simply provides that no conviction shall be had on the testimony of the female seduced "unsupported by other evidence". Her testimony in this case is supported by other evidence of a substantial character. In the light of these considerations instruction number 2 was appropriate and proper.
A like instruction was specifically approved in Atkins v. Commonwealth, 132 Va. 500, 110 S.E. 379. In the case at bar the court granted instructions "E" and "F", which, when read with instruction No. 2, also will entirely eliminate the objection of the accused.
The objection to instruction No. 3 is that inasmuch as the accused testified that at the time he was at a place other than the place where the seduction is alleged to have occurred, this in itself made it...
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Fleenor v. Com., 4867
...upon that as a defense. Whether such reasonable doubt has been shown is ordinarily to be determined by the jury. Tyree v. Commonwealth, 185 Va. 628, 638, 639, 39 S.E.2d 627, 631. In the present case the presumption of chastity has been supplemented by evidence on behalf of the prosecutrix, ......