Richards v. Commonwealth

• Decision Date: 16 November 1933
• Citation: 171 S.E. 525
• Court: Virginia Supreme Court
• Parties: RICHARDS. v. COMMONWEALTH.

171 S.E. 525

RICHARDS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 16, 1933.

Appeal from Corporation Court of Winchester.

Boyd R. Richards was convicted for an attempted rape, and he appeals.

Judgment reversed and cause remanded for a new trial.

F. S. Tavenner, of Woodstock, and Herbert S. Larrick, of Winchester, for appellant.

The Attorney General, for appellee.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

GREGORY, Justice.

Boyd R. Richards, the accused, was indicted for an attempted rape, tried by a jury, and found guilty. His punishment was fixed at confinement in the penitentiary for a period of ten years and in accordance with the verdict of the jury he was sentenced by the court.

There are numerous assignments of error, but in our view of the case it becomes necessary to discuss only one of them. The ninth assignment, in our opinion, requires that the judgment be reversed and the case remanded for a new trial. For the purpose of a decision it will be unnecessary to state all of the facts as disclosed by the evidence.

The ninth assignment brings before this court the failure of the trial court to charge the jury that the accused might be found guilty of a lesser offense than attempted rape, which was the charge in the indictment. The record discloses, in this connection, that in the trial of the case the court charged the jury as follows: "The court charges the jury that if they find the defendant notguilty they shall say so and no more, but if they find him guilty they shall do so under sections 4414 and 4767, which sections the court read to the jury, as far as applicable, and shall fix his punishment under section 4767, " and upon the request of the commonwealth the following instruction was granted:

"Instruction I. The Court instructs the Jury that if you believe from the evidence, beyond a reasonable doubt, that the defendant, Boyd R. Richards, attempted to carnally know the prosecutrix, Pauline Shryock, on the ----day of August, 1931, and in the prosecution of said attempt did do any overt act towards its commission, and that the said Pauline Shryock was at the time of such attempt, a female child of the age of ten (10) years, you shall find the said defendant guilty, regardless of whether or not force was used by him in the attempt to accomplish his purpose, and regardless of whether or not the same was with or without the consent of the said Pauline Shryock, and shall fix his punishment at confinement in the penitentiary for not less than three (3) years nor more than life, or by death.

"But to constitute an attempt there must have been an actual intent on the part of the accused to have immediate intercourse with Pauline Shryock and some overt act done in pursuance of that intent."

Later the court of its own motion and over the objection of counsel for the accused gave the following instruction:

"Instruction 2. The Jury are instructed that the indictment in this case charges: That Boyd R. Richards, on or about blank day of August, 1931, did feloniously attempt to carnally know one Pauline Shryock, an infant of the age of ten years by exposing his private parts and placing the same against the person of the said Pauline Shryock in an attempt to have sexual intercourse with her.

"If the jury shall believe from the evidence beyond a reasonable doubt that the charge contained in this indictment is true, then it would be the duty of the jury to return a verdict of guilty and to fix the punishment as provided for in the instruction numbered one."

No instruction was granted which would have permitted the jury to have found the accused guilty of a lesser offense than an attempted rape: Other instructions were granted but none of them dealt with the point under consideration.

[l] At the outset it is necessary to bear in mind that the indictment charged the accused with an attempted rape and the court, in instruction 1, defined that crime and conclud ed with the punishment which is fixed in Code § 4767, at not less than three years nor more than life, or by death yet the court charged the jury as first above set out, that if they found the accused guilty, "they shall do so under section 4414 (as amended by Acts 1924, c. 443) and section 4767 (as amended by Laws 1930, c. 32), which sections the court read to the jury. * * * " Section 4414 (as amended by Acts 1924, c. 443) creates the crime of rape and prescribes the punishment therefor of not less than five years nor more than life, or by death. Section 4767 (as amended by Laws 1930, c. 32) creates the offense of an attempted rape and fixes the punishment from three years to life imprisonment, or death. The accused having been indicted for attempted rape under section 4767, the erroneous charge or instruction to the jury that if they found him guilty they should do so under sections 4414 and 4767 may have tended to confuse and mislead the jury in arriving at its...