Glover v. Commonwealth
| Decision Date | 21 November 1889 |
| Citation | 86 Va. 382,10 S.E. 420 |
| Court | Virginia Supreme Court |
| Parties | Glover v. Commonwealth, |
Rape—Attempt—Indictment—Time of Finding.
1. Under Code Va. 1887, § 4044, providing that, on an indictment for felony, the jury may find accused not guilty of the felony, but guilty of an attempt to commit it, the court properly refused to charge, on an indictment for rape, that if defendant intended to commit a rape, but before the act was executed voluntarily abandoned it, the jury should find him not guilty, and properly charged them instead that, on an indictment for rape, they might find an attempt to commit rape.
2. On an indictment for rape there was evidence that defendant offered an apple to prosecutrix, a girl under 12 years, if she would go into the stable with him; that he led her into the stable, where he laid her down, pulled up her clothes, and got on her, and a short while afterwards they were seen, the prosecutrix lying down, and the prisoner on her, with the private parts of both exposed; but it was proved that there was no penetration, or attempt to penetrate, and that defendant voluntarily abandoned any attempt he had made to commit rape. Held, that the evidence justified a verdict of guilty of attempt to commit rape.
8. Where defendant is committed for trial during a term of court, that term is not to be counted as one of the two terms at which Code Va. 1887, § 4001, provides that he must be indicted. Overruling Hall's Case, 78 Va. 678.
Error to Appomattox county court. H. D. Flood, for plaintiff in error. The Attorney General, for the Commonwealth.
Lewis, P. Among the exceptions taken by the prisoner at the trial was one to the refusal of the court to instruct the jury as follows: "If the jury believe from the evidence that the prisoner at the bar intended to commit a rape on the prosecutrix, Berta Wright, but before the act was finally executed he voluntarily and fully abandoned it, they are to find a verdict of not guilty." This exception is not well taken. To have given the instruction would have been equivalent to telling the jury that, upon an indictment for rape, the accused cannot be legally convicted of an attempt to commit a rape, which is not the law. The court, therefore, did not err in refusing to give it, nor did it err in subsequently instructing the jury, as in effect it did, that upon an indictment for rape the accused may be found guilty of an attempt to commit a rape, which is in accordance with the law In this state. Givens v. Com., 29 Grat. 830; Mingo v. Same, 8 S. E. Rep. 474. Indeed, the statute, now brought into section 4044 of the Code, expressly enacts that, " on an indictment for felony, the jury may find the accused not guilty of the felony, but guilty of an attempt to commit such a felony; and a general verdict of not guilty upon such indictment shall be a bar to a subsequent prosecution for an attempt to commit such felony."
The next question is, did the court err in refusing a new trial? The evidence for the commonwealth shows that the prisoner led the prosecutrix, a girl under 12 years of age, into a stable, and there laid her down, pulled up her clothes, and got on her. In the course of her examination as a witness before the jury, she testified that the prisoner offered her an apple if she would goto the stable with him, and that, although she wanted the apple, she did not want to go with him, but that he took her by the hand and pulled her along. She also says he unbuttoned his pants and exposed his person before getting on her. Several other children, who were with the prosecutrix near the stable when she was accosted by the prisoner, corroborate her statement as to the circumstances under which she went to the stable with him. One of them, a boy nine years of age, testifies that a little while afterwards he and the other children went to the stable, and looking in, he saw the prosecutrix lying down, and the prisoner on her, and that the private parts of both were exposed. Another, about the same age, testifies that when the prisoner came out of the stable he told him (the witness) "not to say anything about it." It is certified, however, as having been proved at the trial, that " there was no penetration, or attempt to penetrate, and that the prisoner freely and voluntarily abandoned any attempt he had made to rape the prosecutrix without any interruption or interference on the part of any third person." The prisoner, a youth 17 years of age, was himself examined as a witness in his own behalf; but the most of what he says is in conflict with the evidence for the commonwealth, and is therefore to be rejected, inasmuch as the case here must be considered as on a demurrer to evidence, and the residue of his statement is altogether improbable. He says he took the prosecutrix to the stable to give her an apple he had promised her, which was hidden in a pile of shucks behind a pair of draw-bars; that he got on his knees, ran his hand into the shucks, and pulled out the apple, and gave it to her, and that she then left. He also says that, without getting off his knees, he rested his head on his arms, which were on the top rail of the draw-bars, and remained in that position, dozing, for 15 or 20 minutes, until the children came to the stable, when he got up and went about his business.
This is a concise but fair summary of the principal facts in the case, and it shows very clearly that the judgment must be affirmed. The...
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