Cunningham v. Commonwealth

• Decision Date: 18 June 1891
• Parties: Cunningham v. Commonwealth.
• Court: Virginia Supreme Court

13 S.E. 309

88 Va. 37

Cunningham

v.Commonwealth.

Supreme Court of Appeals of Virginia.

June 18, 1891.

Assault with Intent to Rape—Indictment— Evidence.

1. Under Code Va. § 3888, which provides that every person who attempts to commit an offense, "and in such attempt does any act towards its commission, " shall be punished, etc., an indictment for an attempt to commit a rape must aver the act or acts done by defendant towards the commission of the crime.

2. An indictment for an assault with intent to rape, which alleges that defendant violently and feloniously made an assault on a female, and feloniously did attempt to ravish her and carnally know her, against her will and by force, sufficiently charges an act done towards the commission of the offense.

8. The commonwealth's evidence showed that the prosecutrix and defendant were employed ascooks at the same hotel. Defendant made an indecent proposal to her, which she rejected., A few nights thereafter she was awakened by a man in her room, who put his hand on her person, and who said he was going to do what he came to do. The prosecutrix recognized defendant, and began to scream, when defendant choked her. Her screams aroused another servant in the same room, who lit a lamp, when defendant escaped. Held, that the evidence was sufficient to support a verdict of guilty, though defendant and several of his witnesses testified to an alibi.

4. The fact that the court limited the argument of counsel to an hour and a half on a side is no ground for reversal, where defendant made no objection until after the commonwealth's attor ney had concluded his opening argument, and the witnesses were few, and the facts very limited in their range.

Mr. Blanchard, for appellant.

The Attorney General, for the Commonwealth.

Lacy, J. This is a writ of error to a judgment of the corporation court of the city of Bristol, rendered on the 2d day of September, 1890. The case is a prosecution for an attempt to commit a rape. The charge is that defendant, with force and arms, in and upon one Martha Hart-sock, violently and feloniously made an assault; and her, the said Martha Hart-sock, feloniously did attempt to ravish and carnally know, against her will and by force. To the indictment the plaintiff in error demurred, and, the demurrer being overruled, he pleaded not guilty. Upon the trial, witnesses were examined on both sides, and, the argument of counsel being about to commence, the court limited the counsel in their arguments to one hour and a half on a side, and the plaintiff in error excepted because the court limited the time to be consumed by the counsel in argument; and, the argument of counsel being concluded, the jury rendered a verdict as follows: " We, the jury, find the defendant guilty as charged in the indictment, and fix the term of his imprisonment in the penitentiary at three years." Whereupon the prisoner moved the court to set aside the verdict of the jury as being contrary to the law and the evidence, and grant him a new trial, which motion the court overruled; and the prisoner excepted; and judgment was therefore rendered by the court in accordance with the verdict. Whereupon the prisoner applied for and obtained a writ of error to this court.

The first assignment of error here is as to the action of the court in overruling the demurrer to the indictment. His ground of objection to the indictment is that, as the indictment is for an attempt to commit a felony, under section 3888 of the Code of Virginia, it was necessary that the indictment should set out the overt acts done by the accused towards the commission of the offense. Section 3888 is as follows, so far as it affects this question: "Every person who attempts to commit an offense, and in such attempt does any act towards its commission, shall, when not otherwise provided, be punished as follows: If the offense attempted lie punishable with death, the person making such attempt shall be confined in the penitentiary not less than two nor more than five years, except that, in case of an attempt to commit rape, the term of confinement in the penitentiary shall not be less than three nor more than eighteen years." The contention of thr plaintiff in error is that the indictment must set out the act done in the attempt to commit the felony charged to have been committed. Section 3888 provides, as we have seen, that every person who attempts to commit an offense, and in such attempt does any act towards its commission, shall be punished, etc. This is an indictment for an attempt to com-^v mit a rape, and it is necessary, to constitute the crime, that the accused should have done some act towards the commission of, the said rape. This is an element of the offense, —an essential element of the offense, —and without its existence the crime does not exist. Being, therefore, an essential part of the offense, which is not complete without it, it must be averred and proved, in the case of Com. v. Clark, 6 Grat. 675, Judge Leigh said, for the general court, that the indictment ought to have alleged some act done by the defendant of such a nature as to constitute an attempt to commit the offense mentioned in the indictment; it having been adjourned to the general court, among others, this question: "Whether the said inlictment should not allege that the defendant did some act towards the commission of the offense with the attempt to do which he is charged in the indictment." In the subsequent case of Uhl v. Com., Id. 706, on an indictment for an attempt to burn a barn, it was held that an indictment charging that the defendants "did, about 12 o'clock of the night of the said day, attempt to set fire to the said barn, * * * by then and there carrying live coals of fire in a certain tin cup, then and there held by them, * * * and then and there putting and placing the said live coals of fire, which they * * * then ana there had in their possession, in manner aforesaid, to, at, and against the straw, chaff, and other combustible matter, in, about, and against said barn, with a wicked intention, by means thereof, unlawfully, willfully, and maliciously to burn and consume said barn, " was a good indictment under this statute; and held, further, that, according to the true intent and meaning of the law, an attempt can only be made by an actual ineffectual deed done in pursuance of, and in furtherance of, the design to commit the...