Error to Circuit Court, Augusta County.
Henry Hart was convicted of an attempt to rape, and brings error. Affirmed.
In this case the accused was indicted in Augusta county on December 9, 1920, upon the charge of rape committed in that county upon the person of the prosecutrix, who was of the age of about 17 years. On the same day there was a trial by jury in said county, the accused being represented by counsel assigned by the court. The jury not having reached an agreement upon a verdict, the case was continued over to the next day, December 10th. On that day, it being found that the jury could not agree upon a verdict, by the consent of the accused and of the attorney for the commonwealth, and with the assent of the court, one of the jurors was withdrawn, the other members of the jury were discharged, and a new trial was ordered. Thereupon, on the same day, other persons qualified to serve as jurors were ordered to be ascertained and summoned according to law to attend the court the next morning at 10 o'clock, from whom a jury might be selected for the trial of the accused. On the next day, December 11th, the accused, being represented by the same counsel, was tried in said county before a jury duly constituted. That trial resulted in the verdict mentioned below.
The facts proven on the trial last mentioned are certified, and such facts and all of the proceedings in court on such trial appear in the record before us as follows:
"Certificate of Facts.
"Virginia Garber, at the time of the assault on her made by the defendant, Harry Hart, wasabout 17 years old. She was rather small for her age, and is a simple, good, unsophisticated country girl, who lives with her mother about half a mile west from the corporate limits of the city of Staunton on what is known as the Buttermilk Spring road. At the time of the assault, which was on the 8th of December, 1020, she was working and had worked for some time at a laundry in Staunton, and was accustomed to go to her work about 6 o'clock in the morning, and on the morning of the assault left at her accustomed hour, by her accustomed way, to go to work. Six o'clock at that season of the year is in the early dawn of the day— about daybreak; the sun rises at 7:15. Harry Hart, her assailant, is a full-grown negro man, aged 21 years, married, and lived with his wife and child in the same neighborhood in which Miss Garber lived, and was familiar with her customs and habits to the extent that he knew that she was in the habit of going along this road at this time to her work. The point in the road at which she was assaulted was a secluded one, shut off from the front by a sharp bend in the road, with a high bank on the left-hand side thereof coming to Staunton. Hart, on leaving home, took with him an old overskirt belonging to his wife, which he said was to be used by him to wipe up with at the infirmary at the Staunton Military Academy, where he worked, there having been a case of scarlet fever there, and slipped up behind Miss Garber and threw it over her head, and at the same time put his hand over her mouth to prevent any outcry. She struggled to the extent of her ability, and freed herself sufficiently to cry out once for help, and sufficiently loud for her sister, who was on her home porch somewhere about 300 yards off, to hear her. She continued to struggle to escape from him to the best of her ability and until she was about exhausted. The soft ground over which they struggled showed that this struggle had been long and serious. While the struggle was going on, two young white men, Cressman and Southards, traveling westward on this road, walking, came suddenly around the sharp bend in it, and saw this negro man and a woman struggling in the road. They recognized the fact that the man was a negro, but the light was dim at that hour and they did not recognize that the woman was a white woman. They saw that he had something over her face, either a cloth of some sort or his hand, These men thought that this was a negro having some difficulty with his wife or woman, and it was not their part to interfere, and they did not interfere.
"Miss Garber attempted to call out to them as they passed her in the road, within a few feet of her, but her voice was so muffled that she was unable to make herself heard, but these men after they had gone a short distance along this road past the scene of the struggle stopped about 20 or 30 feet from the accused and the woman. Hart looked back over his shoulder and saw that they had stopped and were observing him. He thereupon turned the girl loose. She saw the two white men, but did not then call to them, except when they were passing her as aforesaid, but started to walk to the nearest house in that section that was lighted and showing any signs of life, 414 yards away, went to it and called when she arrived, and, to throw off suspicion on the part of Hart, said that she had a letter for its owner, a Mrs
Smith. When she got into the house, she immediately told of the assault, remained there until it was light enough to return to her home, when she restated to her mother her experience. Her mother, in the shortest possible time, laid the facts before the police of Staunton. After Hart had turned her loose and after she had started for this house, he followed, they talking together as they went, and he said he would walk a little distance behind in order that anybody who saw them might not "think anything." Hart threw the overskirt in a ditch by the roadside a short distance from the point of the assault, and said that his reason for so doing was that he was frightened at what he had done.
"During the attack and towards the close of it, about the time that Cressman and Southards stopped, Hart took his hand from Miss Garber's mouth, but told her not to make any outcry. She then said to him that she was a good Christian girl, and wanted to continue to be one, to which he replied that she was the first Christian girl he had ever seen, and he would not harm her if she was a Christian girl; but he did not turn her loose, as has been stated before, until he saw that Cressman and Southards, who had passed him, had stopped in the road and were looking back to see what was going on.
"After the matter had been reported to the police, they took up the trail, and in a short time arrested Hart, who was working at the Staunton Military Academy. He was questioned, and gave an account of himself and of his movements which seemed to be satisfactory, and, as the girl could not identify him, he was turned loose and returned to the Staunton Military Academy. His account of himself was, in the meantime, investigated and found to be false, and in a short time he was rearrested, and, upon being questioned, admitted that he was the man they were looking for.
"At the first trial, Hart testified in his own behalf, and there was a hung jury. At the second trial, he testified in his own behalf also, and said that, while he had assaulted Miss Garber, it was not his intention to push that assault to its ultimate conclusion, but it was then shown that, under cross-examination, at his first trial he had admitted not only the assault on Miss Garber, but that he had intended when he made this assault upon her to rape her.
"Soon after Hart was arrested his underclothes which he had on at the time of the assault were examined, and there was found thereon stains of seminal fluid that seemed to be fresh.
"Miss Garber was not injured or bruised or thrown down, nor were her clothes torn. Hart did not put his hands under her clothes, nor use any vulgar language, or make to her any improper proposal. When he relaxed his efforts to consummate the assault, he kissed her. The evidence of those who knew him more or less casually was that he bore a good reputation as a law-abiding citizen before this trouble arose."
The foregoing were all of the facts that were proven, and thereupon the court instructed the jury as follows:
"The court instructs the jury that an attempt in criminal law is an apparent unfinished crime, and hence is compounded of two elements, viz.: (1) The intent to commit the crime; and (2) a direct act done towards its commission, but falling short of the execution of the ultimate design. It need not, therefore, be the last proximate act to the consummation of the crime in contemplation, but is sufficient if it be an act apparently adapted to produce the result intended."
"The court instructs the jury that, if they believe from the evidence beyond a reasonable doubt that the accused, with purpose and intent of committing a rape upon the prosecuting witness, Miss Garber, committed an overt act toward the accomplishment of such purpose which was of such a character apparently adapted to produce the result intended, then they should find the accused guilty of an attempt to commit rape, even though they may further believe that he subsequently voluntarily abandoned his purpose, and did no further act towards its accomplishment."
The court also, at the request of counsel for the prisoner, gave sundry instructions on his behalf, but these do not appear in the record on the appeal.
After the jury had heard all of the evidence and had received the said instructions of the court, and had heard the argument of counsel, and before they retired from the jury box, the court charged them orally from the bench as follows:
"Gentlemen of the jury, you will now retire to the jury room to consult over a verdict, and, after you have retired, consider all of the evidence in the case carefully, and if, after a careful and painstaking consideration of all of the evidence in the case, you should believe that the defendant is not guilty, then say so and no more; but, if you should believe from the evidence beyond a reasonable doubt that the defendant is guilty of attempt to commit rape, as charged in the...
