Woodson v. Commonwealth

59 S.E. 1097, 107 Va. 895, 1908 Va. LEXIS 150

• Court: Supreme Court of Virginia
• Decided: January 16, 1908
• Status: Published

Opinions

Harrison, J.,

delivered the opinion of the court.

The indictment in this case charges the accused with an attempt to commit rape upon a certain female. In such cases, force is an essential element of the crime. To sustain the charge of an attempt to commit rape, there must be evidence of force, or of an intention on the part of the offender to use force in the perpetration of the heinous offense, if it should become necessary to overcome the will of his victim. The crime of assault with intent to rape can only be established by proof of force or attempted force, coupled with an attempt to gratify the lustful desire, against the consent of the female, notwithstanding resistance on her part. Hairston v. Commonwealth, 97 Va. 754, 32 S. E. 797; Cunningham v. Commonwealth, 88 Va. 37, 13 S. E. 309; Christian v. Commonwealth, 23 Gratt. 954; Jones v. State, 90 Ala. 628, 8 South. 383, 24 Am. St. Rep. 850; Dorsey v. State, 108 Ga. 477, 34 S. E. 135; Massey v. State, 86 N. C. 658, 41 Am. Rep. 478; Green v. State, 67 Miss. 356, 7 South. 326.

In the case at bar, the testimony of the prosecutrix is the only evidence showing the facts and circumstances attending the occurrence. She says, that before dark, on the 9th of January, 1907, she went to the spring, about one-fourth of a mile from her home, to get a bucket of water; that, when returning, the accused was standing in the path with a double-barrel shot-gun and his face blackened, though she could see the natural color of his neck and hands; that he followed her along the path, and when she had gotten about half-way home, he came up to her and seized her arm and said, “Hold on, I want some;” that she screamed and ran to a neighbor’s house, who lived about two hundred yards from her home, and told him of the occurrence; and that this neighbor went down there .with his gun, but could find no one.

This evidence shows that the conduct of the accused was shockingly indecent and insulting, and, if believed by the jury, subjected him to a conviction for an aggravated assault; but the-court is of opinion that it falls short of showing a felonious-intent. However reprehensible his conduct, we are constrained to say that the testimony fails to show any attempt on the part of the defendant to employ any force whatever in the accomplishment of his purpose, whatever that may have been. There was no attempt to use force, no threat; only solicitation. The absence of all violence and of evidence of any intention to use force, if necessary, to overcome the will of the prosecutrix, the time and the place, invest the charge with improbability. The evidence is consistent with a desire on the part of the offender to have sexual intercourse with the prosecutrix, but there is no evidence of an intention to use force, if necessary, to gratify his desire; only persuasion.

“The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.” Hairston’s Case, supra.

This conclusion makes it unnecessary to consider other assignments of error.

We are of opinion that the circuit court erred in refusing, to grant the plaintiff in error a new trial, for which error its-judgment must be reversed, the verdict of the jury set aside, and a new trial awarded.