“To sustain the charge there must be evidence of ‘some array 13 or show of force in form sufficient to overcome resistance, but the woman is not required to resist to the utmost of her physical strength, if she reasonably believes resistance would be useless and result in serious bodily injury to her.’ The amount of resistance required necessarily depends on the circumstances[.]” (citation omitted)
How later courts described this case
- “To sustain the charge there must be evidence of ‘some array 13 or show of force in form sufficient to overcome resistance, but the woman is not required to resist to the utmost of her physical strength, if she reasonably believes resistance would be useless and result in serious bodily injury to her.’ The amount of resistance required necessarily depends on the circumstances[.]” (citation omitted)
- “In testing the credibility and weight to be ascribed to the evidence, we must give trial courts and juries the wide discretion to which a living record, as distinguished from a printed record, logically entitles them.”
- “The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them.”
Written by the judges who cited it.
The opinion
Eggleston, J.,
dissenting.
The majority opinion sustains the conviction of the accused, a Negro, of rape of a white woman thirty-four years of age. His punishment was fixed at life imprisonment, but it might have been death.' Code, § 18-54. The conviction is based primarily upon the testimony of the prosecutrix which to my mind is contrary to human experience and insufficient to show the guilt of the accused beyond a reasonable doubt.
According to the prosecutrix, her desire to purchase a certain kind of “fruitcake mix” prompted her to go in the early afternoon to a grocery store “about one mile away,”, which incidently required her to pass through that part of the city of Suffolk which is inhabited by Negroes. While on this mission, she says, she was accosted on the street by the accused, in open daylight, and forced to go into a shed where she was raped by force and against her will.
The evidence shows without contradiction that for the next two and one-half hours the prosecutrix remained with the accused, walked along the streets of the city with him, passed numerous persons both white and colored, and visited with the accused three different places. In one of these places she talked to a white man out of the presence of the accused. And yet all the while she made no outcry or complaint of the terrible crime which had been perpetrated upon her, no appeal for help, and gave no indication whatsoever that she was, as she says, being held or restrained *1139 by the accused. Such conduct on her part was contrary to what we know from common sense and experience is that of a woman who had been thus outraged. Moreover, it is incredible that the accused, after having committed such a crime, would have walked the streets of the city in broad daylight with the prosecutrix and in company with her would have visited several places where he was known. He would certainly know that she would tell of his conduct and her plight at the first opportunity.
The testimony of the accused that the prosecutrix voluntarily submitted to him on this occasion, as she had previously done, may not be true. Indeed, it may have been so shocking to the jury as to have induced the verdict of conviction. We are not required to speculate as to what really occurred between' the prosecutrix and the accused. The Commonwealth’s case must stand or fall on the testimony of the prosecutrix, and that I think is too fantastic and improbable to sustain a finding of guilt beyond a reasonable doubt.
In Legions v. Commonwealth, 181 Va. 89 , 23 S. E. (2d) 764 , we reversed a judgment of conviction and sentence of death imposed upon a Negro for the rape of a white woman based upon a similarly incredible story of the prosecutrix. In my opinion, what we said in that case applies here: “Of course we are mindful of the force of a jury’s verdict, approved by the trial court, but we have said time and again that we are not required to believe that which we know from human experience is inherently incredible. What we know as men we are not required to forget as judges.’ ” ( 181 Va., at page 92 , 23 S. E. (2d), at page 765 .) See also, Terry v. Commonwealth, 174 Va. 507 , 6 S. E. (2d) 673 ; Vance v. Commonwealth, 155 Va. 1028 , 154 S. E. 512 .
I would set aside the verdict of the jury, reverse the judgment of conviction, and remand the case for a new trial if the Commonwealth be so advised..
Hudgins, C. J., concurs in this dissent.