United States v. Lovely

• Decision Date: 14 May 1948
• Docket Number: Cr. No. 17107.
• Citation: 77 F. Supp. 619
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES v. LOVELY.

77 F. Supp. 619

UNITED STATES v. LOVELY.

Cr. No. 17107.

District Court, E. D. South Carolina. Columbia Division.

May 14, 1948.

Ben Scott Whaley, U. S. Atty., of Charleston, S. C., and H. H. Edens, Asst. U. S. Atty., of Columbia, S. C., for the United States.

Claud N. Sapp, Jr., and Walter S. Monteith, both of Columbia, S. C., for defendant.

WYCHE, District Judge.

The defendant in this case, a First Lieutenant in the United States Army, was convicted of raping a virgin, a girl twenty years old, on property of the United States Government at Fort Jackson, South Carolina. The verdict of the jury was "Guilty Without Capital Punishment".

Before imposing the mandatory sentence of life imprisonment upon the defendant, I overruled his motion for a new trial and stated that I would file a memorandum opinion giving my reasons therefor.

It is not necessary for the purpose of this opinion to state the outrageous facts disclosed by the Government's evidence.

The main ground of the defendant's motion for a new trial is that the court erred in admitting evidence of a rape by the defendant upon another girl under similar circumstances, in the same vicinity using the same general method, fifteen days before he is alleged to have raped the prosecutrix in this case.

At the time this testimony was offered by the Government there was in evidence a written statement of the defendant in which he contended that he had not raped the prosecutrix, that he had not had sexual intercourse with her; that on the night in question he left the Officers Club at Fort Jackson, South Carolina, with the prosecutrix at about 11:15 p. m., that upon reaching Smith's garage, about six blocks away, he found he was getting sleepy and could not control the car properly, so he parked the car, slid down in the seat and went to sleep; that the prosecutrix was in the car when he went to sleep, but when he awakened she was gone; that he went back to his quarters and went to bed; thereby, in effect, contending that he was not present at the scene of the crime when it was committed. However, subsequently, and, after the Government had closed its case, when the defendant took the witness stand to testify in his own behalf, he admitted that this part of his statement was false; that he was present at the scene of the crime, that he had had sexual intercourse with the prosecutrix at that place on the night in question, but claimed that it had been with her consent. This was the first information the court had that the defendant would admit having had sexual intercourse with the prosecutrix at the scene of the crime on the night in question, or that he had abandoned his defense of alibi contended for in his written statement.

The prosecutrix testified that she was raped on the night of October 19, 1947; the other girl testified that she was raped on the night of October 4, 1947. The testimony discloses that the defendant used a similar scheme and a similar plan to rape the prosecutrix and the other girl. Both victims were young working girls, whom he had known for only a few days. In each case the victims were raped on the property of Fort Jackson on a side dirt road. In each case he took his victims to a desolate and deserted section of the Fort Jackson reservation to commit the crime and where outcries could not be heard. In each case, the defendant, shortly after meeting his victims, carried each one to the Officers Club and offered each one liquor to drink. Upon leaving the Officers Club he led each one of his victims to believe he was taking her home, but instead of taking her home, he turned off onto a side dirt road and drove some distance down the dirt road and then turned the car around. In each instance each of the girls begged him to take her home. In each instance he excused himself and went behind the car for a few minutes, and then came to the side of the car where the girl was sitting. In each instance he forced the girls from the seat of the car; when each of the girls sought to escape by running away from him, he overtook each and brought her back to the automobile; in each case he forced his victim onto the front seat of the automobile and forcibly placed each in similar positions on the front seat, holding each in such position that movement and resistance were impossible, and in which position he succeeded in accomplishing his purpose; that he ruthlessly squelched each attempt of his victims to attract attention, and told each that she could not be heard. Each of the victims begged him to take her home, but he refused to do so until he had accomplished his purpose by force, in the course of which he subjected both victims to continuous and lengthy sexual abuse. After the defendant's arrest two pairs of men's shorts were found in his quarters stained with blood and semen. The defendant, however, contended, when he took the witness stand, that these stains came from having sexual intercourse with one Laura Mae Matthews, a girl he had met a short time before, and whom he testified he expected to marry when he obtained a divorce from his second wife. Blood and semen stains were also found in several places on the front seat of the automobile used by the defendant on the night of the offense. Blood and semen were also found upon the trousers of the defendant which he admitted he wore on the night of the offense.

The defendant was not taken by surprise. The attorneys for the defendant knew a week before the trial that the Government intended to offer the evidence of the other victim, and discussed her testimony with her before the trial. (See cross-examination of other girl by defense counsel.) Defendant, when he took the witness stand, neither admitted nor denied the rape of the other girl.

At the time the testimony in question was admitted I admonished the jury that the defendant in this case was not charged with having raped the other girl, that he was only charged with having raped the alleged victim named in the indictment, and no other; that this evidence was not being admitted for the purpose of proving that he raped the prosecutrix, but that it was admitted for the sole purpose of attempting to show identity, intent, motive, or of showing a plan, scheme or design, or bent of mind of the defendant. In my charge I cautioned the jury fully to the same effect.

At the outset, it must be remembered that the plea of not guilty made available to the defendant every defense known to the law. Under such plea the defendant could have claimed an alibi; he could have said that he attempted to rape the prosecutrix, but failed in penetration; he could have contended that not he, but someone else raped the defendant; he could have said that he had no intention of using force to overcome the resistance of the prosecutrix; he could have claimed incapacity; or he could have refused to take the stand and testify to any defense. The Government could not anticipate or assume what the defense of the defendant would be. Unless the precise defense of the defendant be disclosed in advance the prosecution may in fairness assume that every element of the offense charged may come into issue. Wigmore on Evidence, 3d Ed., Volume II, sec. 307.

It should be observed that in a prosecution for rape under the federal statute the lesser offense of assault with intent to rape is included. 18 U.S.C.A. § 565. The lesser offense of assault with intent to rape was an issue in this case until the defendant took the stand and admitted penetration.

Intent is the purpose to use a particular means to effect a definite result. People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193. In a rape case "there must be an intent to have intercourse by the use of such force as is necessary to overcome the resistance encountered to accomplish the act, despite the unwillingness and resistance of the female." Braswell v. State, 170 Ark. 1192, 280 S.W. 367, 368. (Emphasis added.)

"To constitute a crime the act must, except in the case of certain statutory crimes, be accompanied by a criminal intent or by such negligence or indifference to duty or to consequences as is regarded by the law as equivalent to a criminal intent, the maxim being, Actus non facit reum, nisi mens sit rea — a crime is not committed if the mind of the person doing the act is innocent." 16 C.J. page 74. (Emphasis added.)

22 C.J.S., Criminal Law, § 29, at page 84, puts it this way: "Except as otherwise provided by statute, an overt act to constitute a crime must be accompanied by a criminal intent or by such negligence as is regarded by law as equivalent to a criminal intent." (Emphasis added.) The overt act in a case of rape is penetration by force without the consent of the female.

In Reg. v. Tolson, 23 Q.B.D. 168, 185, Sir James Fitzjames Stephen, in discussing the foregoing maxim, said: "* * * the mental elements of different crimes differ widely. `Mens rea' means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen." Note in 16 C.J. at page 74. (Emphasis added.)

"It has always been the law (unless otherwise prescribed by statute) that to convict one of crime requires the proof of an intention to commit a crime." Nosowitz v. United States, 2 Cir., 282 F. 575, 578. Therefore, in a charge of rape, and in a charge of the included lesser offense of assault with intent to rape, intent is an issue.

Of course, evidence of other offenses and independent crimes and convictions are generally incompetent to establish proof of the guilt of an accused, but it is well settled that evidence of other similar offenses committed or attempted by the accused is admissible to show, or when it tends to show, his criminal intent or purpose with respect to the offense charged; such evidence is admissible to prove...