Foster v. Commonwealth

• Decision Date: 15 September 1898
• Parties: FOSTER . v. COMMONWEALTH.
• Court: Virginia Supreme Court

31 S.E. 503

96 Va. 306

FOSTER .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 15, 1898.

Rape—Capacity to Commit.

A boy under 14 years of age is conclusively presumed to be incapable of committing either rape or an attempt to commit rape.

Error to circuit court, Roanoke county. One Foster was convicted of an attempt to commit rape, and he brings error. Reversed.

W. W. Ballard, for appellant.

The Attorney General, for the Commonwealth.

RIELY, J. This case presents for decision the important question whether a boy under 14 years of age is capable, under the law, of committing the crime of rape or of the attempt to commit it. It does not appear ever to have been passed upon in this state by any court of last resort.

In Law v. Com., 75 Va. 885, it was stated, as the result of all the authorities, that a boy under 14 years of age, who aids and assists another person in the commission of the offense of rape, may be convicted as principal in the second degree, if It appear from all the circumstances of the case that he had a mischievous discretion; but the particular question we are now called upon to decide was not involved in that case, and, thoughadverted to, the court refrained from expressing any opinion upon it.

By the common law, a boy under 14 years of age is conclusively presumed to be Incapable of committing the offense, whatever be the real fact. Evidence to rebut the presumption is inadmissible. 1 Hale, P. C. 630; 4 Bl. Comm. 212; 2 Russ. Crimes (9th Ed.) 1117; 2 Archb. Cr. Prac. & Pl. 156; Rex v. Eldershaw, 3 Car. & P. 396; Rex v. Groombridge, 7 Car. & P. 582; Reg. v. Philips, 8 Car. & P. 736; Reg. v. Jordon, 9 Car. & P. 118; Reg. v. Brimilow, Id. 366; Reg. v. Waite [1892] 2 Q. B. 600; and Reg. v. Williams [1893] 1 Q. B. 320.

In the United States the rule of the common law has not been uniformly followed. It was adhered to in State v. Handy, 4 Har. (Del.) 566; State v. Sam, 60 N. C. 293; in Williams v. State, 20 Fla. 777; and in McKinny v. State, 29 Fla. 565, 10 South. 732. See, also, Com. v. Green, 2 Pick. 380.

In Williams v. State, supra, it was held that as there was no statute in Florida fixing the age within which a person is capable of committing the crime of rape, the rule of the common law prevailed, and that a boy under 14 years of age could not be guilty of the offense.

In some of the other states the rule of the common law has been laid down in a modifled form.

In Williams v. State, 14 Ohio, 222, it was held that an infant under the age of 14 years is presumed to be incapable of committing the crime of rape, or of an attempt to commit it; but that the presumption may be rebutted by proof that he has arrived at puberty, and is capable of consummating the crime. This decision was made in 1846. The question was again before the court in 1878, in the case of Hiltabiddle v. State, 35 Ohio St 52; and the rule in its modified form, as laid down in Williams v. State, supra, since it had stood as the law of that state for many years, was followed, but it is strongly implied in the opinion that, except for the previous decision, the court would have adhered to the rule of the common law.

The rule in its modified form, as adopted in Williams v. State, 14 Ohio St. 222, has been followed in New York, Tennessee, Kentucky, Louisiana, and Georgia. People v. Randolph, 2 Parker, Cr. R. 174; Wagoner v. State, 5 Lea, 352; Heilman v. Com., 84 Ky. 457, 1 S. W. 731; State v. Jones, 39 La. Ann. 935, 3 South. 57; and Gordon v. State, 93 Ga. 531, 21 S. E. 54. See State v. Yeargan (N. C.) 36 Lawy. Rep. Ann., note 203 (s. c. 23 S. E. 153).

The American text writers upon criminal law, so far as we have had access to them, adhere to the rule of the common law. Davis, Cr. Law, 25, 29; Minor, Syn. Cr. Law, 73; Whart Cr. Law, § 551; 3 Greenl. Ev. § 215; and 1 Bish. New Cr. Law, § 373; 2 Bish. New Cr. Law, § 1117.

The last-named author, who is universally recognized as one of the ablest and most philosophical writers upon law In this country, In his latest work on Criminal Law, approves unqualifiedly the rule of the common law for the sake of convenience and decency as well as for its justice, and doubts "whether physical capacity in boys below fourteen Is sufficiently frequent to call for the abolition of a technical rule so well adapted as this to prevent those particular statements of indecent things which wear away the sense of the refined, placed by the Maker in the human mind as a protector of its virtue." 2 Bish. New Cr. Law, § 1117.

The convention of May, 1776, which declared our separation from England, and framed the first constitution of the state, ordained that "the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of King James the First and which are of a general nature, not local to that kingdom, together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony." St. 9 Hen. p. 127, § 6; St.. 13 Hen. p. 23, c. 17; and 1 Rev. Code, pp. 135, 136, cc. 38, 40.

In the year 1792, so much of the ordinance of 1776 as adopted the acts of parliament of a general nature, made in aid of the common law, prior to the fourth year of James I., was repealed by the legislature; but that part of the ordinance of 1776 which established the common law until it should be altered by legislative power has never been repealed.

The revisers of the Code of 1849 prepared, and the legislature adopted, the following statute, prescribing the force and effect to be given to the common law:

"The common law of England, so far as it Is not repugnant to the principles of the bill of rights and constitution of this state, shall continue in force within the same, and be the rule of decision, except in those respects wherein it is or shall be altered by the general assembly." Code 1849, c. 16, § 1.

And this is, by statute, the force and effect to be given to it at the present time. Code 1887, § 2.

Consequently the common law of England, so far as it is not repugnant to the principles of the bill of rights and constitution of this state, or has not been modified by our written law, is in full force in this state, and constitutes the rule of decision on all subjects, whether of a civil or criminal nature. See Report of Revisers of Code 1849, p. 68, note.

Although, by the terms of the ordinance of 1776, the common law was adopted generally, and without a qualification similar to that annexed to the adoption of the British sta...