Givens v. Commonwealth

• Decision Date: 24 January 1878
• Citation: 70 Va. 830
• Parties: GIVENS v. COMMONWEALTH.
• Court: Virginia Supreme Court

70 Va. 830

GIVENS v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 24, 1878

1. To carnally know a female child under twelve years of age whether with or without her consent, is a rape.

2. To attempt to carnally know a female child under twelve years of age, whether with or without her consent, is an offence embraced in the statute, Code of 1873, ch. 195, § 10, and is punishable with confinement in the penitentiary for a period of not less than one nor more than eighteen years.

3. The statute provides that the offence charged may be, at the discretion of the jury, punished with death, or confinement in the penitentiary. This is a death penalty, and the attempt to do the act forbid, is embraced in the statute, Code of 1873, ch. 195, § 10.

4. In a prosecution for carnally knowing a female child under twelve years of age, the jury find the prisoner not guilty of the act, but guilty of the attempt to commit it. The only witness as to the act, was the child, who was proved by her mother to be between ten and eleven years old. The court below having refused to set aside the verdict and grant a new trial, the appellate court will not reverse the judgment.

This was an indictment by the grand jury of Nelson county court against Horace Givens, for carnally knowing a female child under twelve years of age. The prisoner was tried for the offence, and the jury found him not guilty of the felony charged in the indictment; but guilty of an attempt to commit such felony; and fixed his term of confinement in the penitentiary at five years. And there was a judgment according to the verdict.

The prisoner moved the court for a new trial, on the ground that the verdict was not sustained by the evidence. But the court overruled the motion; and he excepted. The only evidence mentioned in the bill of exception, is that of the child, by whom the fact of the attempt to carnally know her was proved and that of the child's mother, who proved that the child was in the eleventh year of her age.

The circuit court having refused to grant the prisoner a writ of error to the judgment, he applied to this court for it; and it was awarded.

Thomas P. Fitzpatrick, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

ANDERSON J.

On an indictment for felony, the jury may find the accused not guilty of the felony charged in the indictment, but guilty of an attempt to commit such felony. (Code of 1873, ch. 202, § 31). Such is the finding of the jury in this case, and they fix the prisoner's term of confinement in the penitentiary at five years; which is the judgment of the court.

It is contended for the prisoner and assigned as error in the judgment, that the attempt of which he is convicted, is not punishable by the statute with confinement in the penitentiary, but by confinement in the jail not less than six nor more than twelve months, because the offence which he was convicted of an attempt to commit is punishable with death, or confinement in the penitentiary.

The section under which he was indicted, (Code of 1873, ch. 187 § 18) is in these words: " If any person carnally know a female of the age of twelve years or more, against her will, by force, or carnally know a female child under that age, he shall be at the discretion of the jury punished by death, or confined in the penitentiary, not less than ten nor more than twenty years." It was under this last clause of the section that the prisoner was indicted, the female child being under the age of twelve years and over ten. It is doubtless under this section that the crime of rape is punishable, although the term " rape" is not to be found in it. The offence in case the female was twelve years old and over, as described in this section, unquestionably constitutes the crime of rape; and the offence in case the female was under the age of twelve years, is treated as of the same grade and of equal atrocity, and both are alike punishable at the discretion of the jury with death, or by confinement in the penitentiary. And both are embraced in Lord Chief Justice Hale's definition of rape. " Rape (he says) is the carnal knowledge of any woman above the age of ten years against her will, and of a woman child under the age of ten years with or against her will." 1 Hale's Pleas of the Crown (first American ed.), p. 627. Our statute makes the age twelve years, which is the age of consent of a female. And Lord Hale, in the same book, in commenting upon the statute of 18 Eliz. ch. 7, which declares, " that if any person shall unlawfully and carnally know and abuse any woman child under the age of ten years, it shall be felony without the benefit of clergy," says, " if she be above the age of ten years and under the age of twelve years, it is rape: 1. Because the age of consent of a female is not ten, but twelve." And he quotes my Lord Coke as saying " that these words within age must be taken for her age of consent, viz: twelve years, for that is her age of consent to marriage, and consequently her consent is not material in...