Waitt v. Com.

• Decision Date: 13 June 1966
• Citation: 148 S.E.2d 805,207 Va. 230
• Court: Virginia Supreme Court
• Parties: Robert W. WAITT, Jr. v. COMMONWEALTH of Virginia.

Page 805

148 S.E.2d 805

207 Va. 230

Robert W. WAITT, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 13, 1966.

F. Byron Parker, Richmond (Parker & Lane, Richmond, on brief), for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

BUCHANAN, Justice.

A grand jury of the Hustings Court of the City of Richmond, on October 5, 1964, returned an indictment against the appellant, Robert W. Waitt, Jr., herein referred to as defendant, charging him with the rape of Janet Lorraine Campbell, an infant fourteen years old. Code § 18.1--44. ¹

On his trial a jury found him guilty and fixed punishment at five years in the penitentiary. He was sentenced accordingly and we granted a writ of error. Among other assignments of error he here alleges that the verdict of the jury was contrary to the law and the evidence.

The defendant, who was forty-four years old at the time of his trial in February, 1965, had married Martha Lorraine Compbell in January, 1956, of which marriage a son, Robert, was born. It was his third marriage and her second. She was divorced from her first husband, by whom she had two daughters, Janet, born December 20, 1949, and Theresa, who was a year younger. At the time of the alleged offense the defendant, his wife and the three children lived in a home on Newport Drive, in Richmond. The bedrooms were on the second floor, reached by a stairway. The bedroom of the two girls was across the hall opposite the bedroom occupied by the defendant and his wife. The son's room was on the same side as that of the girls, and a maid's room was on the same side as that of the defendant and his wife.

Janet Campbell, defendant's stepdaughter, testified that on a Sunday afternoon in January or February, 1964, between one and three o'clock in the afternoon, when she was taking a nap in her bed and was lying on her stomach under the covers, the defendant came in, rolled her over, took her pants off and had intercourse with her. Asked whether she made any protest at the time, she replied that she did not guess she did; that 'He has forced himself on me so many times that I just--I don't know. I was just giving up hope saying no. * * * I thought he would hurt the family in some way, or--well, hurt me, or my mother, or somebody.' She said she was afraid of him. She was asked what her feeling was toward him at that moment and she answered, 'Oh, I hated him.' She made no disclosure of the matter until the happening on the following July 12.

In the early morning of July 12, 1964, so Janet testified, after her mother and defendant had gone to a party earlier that night, she and her sister Theresa went to their room about ten-thirty or eleven o'clock, shut their door and went to sleep. Later, sometime after twelve o'clock, the defendant came and got in bed with her. He told her to take off her pants but she refused, and he began to feel parts of her body. He told her again to take her pants off but she said 'No. No. No.' and he then started to get on top of her, but her sister got up and said, 'Bob, will you please get off of Janet,' and ran out into the hall. Defendant then jumped out of the bed 'real quick' and ran into the hall. 'He had on just a strap.' Her mother met him in the hall. Theresa was all upset and crying. Her mother said, 'Theresa, honey, what's the matter?' Theresa replied, 'Mom, Bob was on top of Janet.' Her mother then called the police.

Mrs. Waitt, Janet's mother, said that around nine-thirty that night she and the defendant went to the home of a friend, where they had drinks, and left there about two or two-thirty. When they returned home the defendant left to get the Sunday morning newspaper. She went in, saw that the girls were all right, closed their door and went to bed and to sleep. She was awakened between three-thirty and four o'clock by Thereas's screaming, 'Mama, Mama, please come in here and get Bob off the top of Janet.' By the time she got into the hall the defendant was coming out of the children's bedroom with his jockey strap on and had turned the hall light on. The children were greatly upset, she went into their room to try to calm them and by then the defendant had got into bed. She told him she was going to call the police, and did so. A police officer came and talked to her and to the girls. Later that day Mrs. Waitt left the home, took the girls with her, and they have not lived with the defendant since.

The officer arrived about 4:30 a.m., he testified, talked with Mrs. Waitt and the two girls, and advised Mrs. Waitt to confer with the Commonwealth's attorney.

Theresa, the younger sister of Janet, testified that she was awakened that morning by the turning of the doorknob and defendant walking in. He went over to Janet's bed and got in and she heard a sound like skin scraping together. Then he started whispering to Janet and asking her to take off her pants. He kept begging her and she said no. Then he started to get on top of her. She, Theresa, screamed to him to get off of Janet and ran to her mother's room, but met her mother in the hall. She said the defendant had on a jockey strap.

Dr. William T. Moore examined Janet on July 16, 1964, and found what he called a marital vagina. He said the hymen was dilated sufficiently large to admit two fingers and permit the use of instruments normally used for examining married women, a condition that could have been caused by the male organ, but that it could have been made by other means and he could not say that she had had intercourse with anybody.

Defendant, who for the past four years had been the Executive Secretary of the Richmond Centennial Commission, categorically denied having ever had any sexual relations with Janet or any othe girl. He undertook to account for his activities on each Sunday in January and February, 1964, to show his lack of opportunity to commit the alleged offense. In support of this contention he introduced statistical records of his employment and his appointment book. He also introduced some twenty character witnesses, who testified that his reputation for truth and veracity was good and that they would believe him on oath. However, the records of his activities were kept by him and in his possession, and were not conclusive; and his evidence failed to convince the jury that he was telling the truth.

He introduced testimony to the effect that he and his wife had frequent quarrels; that she had struck him at various times and had said in the presence of others that she would see him in jail or the penitentiary before she would let him divorce her.

As to the July 12 incident, defendant testified that he returned home with the newspaper and after reading some of it he went upstairs and into his bedroom at about 4 a.m. and was getting ready for bed when he heard one of the girls call, 'Bob, Bob,' and he answered that he was coming; that he walked over to their bedroom, the door of which was open, and Janet said, 'Bob, it's me,' and he walked in the direction of her bed; that when he got to the foot of Theresa's bed 'Theresa jumped up and says, Mom, Mom, Bob's raping Janet.' His first reaction to that was that the child was having a nightmare, or something; that she kept on yelling so he turned and walked into the hall to get his wife to come in and quiet Theresa; that he met his wife in the hall and she shook her finger at him and said, 'Bob I have been suspecting this for a long time. Now I have got you, caught you.'

He testified that on the Saturday evening preceding July 12 he was in the living room reading and Janet was there sitting in a chair when Theresa came in, walked over to Janet, starting whispering, and he heard her say, 'This is the night we are going to get Bob.' He said, 'I looked up at them with a very startled expression. They saw me looking, and she changed the subject.' They were looking at the green sheet of the newspaper, which he sad he identified 'because here are my initials on it that I put right after--.' Both girls denied that any such thing occurred.

In his brief the defendant states: 'The defendant's theory was that his wife and stepchildren, who hated him, were out to send him to the penitentiary and take his property.' It was a theory that found little support in the evidence. It was rejected by the jury, which found him guilty of the charge, and it is clear from the record that the evidence was sufficient to support their verdict.

The remaining assignments of error relate to procedural matters, discussed below, and we find them to be without merit.

Defendant moved to quash the indictment because it did not state the time of the offense. It charged that the offense occurred within sixteen months prior to the finding of the indictment. The Commonwealth filed a bill of particulars which stated that it occurred between one and three o'clock on a Sunday afternoon in the month of January or February, 1964.

Second 19.1--172 of the Code provides that no indictment shall be quashed or deemed invalid for omitting to state, or stating imperfectly, the time at which the offense was committed when time is not the essence of the offense. There was no dispute as to Janet's age and time was not the essence of the offense charged against the defendant. Lear v. Commonwealth, 195 Va. 187, 77 S.E.2d 424. The indictment supplemented by the bill of particulars sufficiently identified the offense charged and the motion to quash was properly overruled. Hudgins v. Commonwealth, 142 Va. 628, 128 S.E. 565; Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293.

Defendant now complains of the admission of the testimony of the event of July 12, 1964. He did not object to it at the trial and objection is not available to him now. Rules of Court, 1:8. Not only was it not objected to, but after Janet and...