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Code, § The jury fixed his punishment at forty years in the penitentiary. A motion to set aside the verdict was overruled, judgment entered, and the accused sentenced in conformity with the verdict.

We granted him a writ of error. According to Deputy Sheriff Spitzer, Strawderman stated that Mary Elizabeth did not get out of the car, was never out of his sight during the trip, and they never left State Highway No. Returning to commonwealth penis Miller residence at approximately p.

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When Strawderman and Mary Elizabeth left the home Clifton Miller, father of the child, went to sleep and was awakened about p. She stood inside the door commonwealth penis a period of time which Miller estimated to be between 15 and 30 minutes, and did not say anything.

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When Commonwealth penis. Miller came in she examined the child and found some blood on her panties and legs. Over the objection of the accused Mrs. The family having no means of transportation immediately available the child was not subjected to a physical examination by a medical doctor until the next day when she was taken to the office of Dr. Charles W. Hertzler in Bergton. Over the objection of the accused, Dr. There are four questions involved on this appeal.

The first is: Did the court err in permitting Dr. The same applies to the second question: Did the court err in permitting Mr. Miller to testify as to what Mary Elizabeth stated, which commonwealth penis the court ultimately instructed the jury to disregard.

Anthony v.

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Commonwealth, Va. Hence, it was not error to give the instruction. It should be remembered, however, that on numerous occasions we have stated that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be less illuminating than the expression itself. McCoy v.

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The fourth and last question presented is: Was the evidence sufficient to support the verdict that the accused was guilty of rape? It must be conceded that, absent the testimony of Dr. Hertzler that the injury to the child was caused by a male penis, the evidence is insufficient to convict the accused of rape. McCall v. King v.

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Consequently, it is universally held that under an indictment charging commonwealth penis rape of a child under sixteen years of age, as well as one charging the common law rape of an adult woman, the prosecution must prove that there has been an actual penetration to some extent of the male sexual organ into the female sexual organ.

Bailey v. Commonwealth, 82 Va. Commonwealth, supra, Va. This essential element must be proved beyond a reasonable doubt. While the necessary element of sexual intercourse may be proved by circumstantial evidence 44 Am. Although Dr.

Hertzler was introduced as an expert witness, his statement pojeździe wstaje penisa this instance that the injury to the child was caused by a male penis is not sufficient to prove the act of sexual intercourse beyond a reasonable doubt. Commonwealth penis the case of McCall v. The competency of expert testimony depends upon the question as to whether or nor any peculiar knowledge, science, skill, or art, not possessed by ordinary persons, is necessary to the determination of the matter at issue.

In other że jeśli mężczyzna nie ma erekcji, expert testimony is not admissible as to matters within the experience or knowledge of persons of ordinary information as to which the jurors are competent to draw their own inferences from the evidence before them without extraneous aid other than the instructions of the court upon the questions of law involved.

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Southern R. Mauzy, 98 Va. City of Richmond, Va. In 20 Am. In other words, while a jury is entitled commonwealth penis the aid of experts in determining the existence or nonexistence of facts not within common knowledge, an expert witness must not take the place of the jury and declare his belief as to an ultimate fact. It is not sufficient that facts and circumstances proved be consistent with the guilt of the accused. To sustain a conviction they must be inconsistent with every reasonable hypothesis of his innocence.

Spratley v. At most, it shows that he was guilty of molesting the child and tampering with her sexual organs in some perverted but undisclosed manner. This is not the offense of which he was convicted. The judgment is reversed and the case commonwealth penis for a new trial if the Commonwealth be so advised. Post navigation.

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