State v. Gill

• Decision Date: 23 March 1926
• Docket Number: (No. 5425.)
• Citation: 132 S.E. 490
• Parties: STATE. v. GILL.
• Court: West Virginia Supreme Court

132 S.E. 490

STATE.

v.GILL.

(No. 5425.)

Supreme Court of Anneals of West Virginia.

March 23, 1926.

(Syllabus by the Court.)

Error to Circuit Court, Marion County.

Jim Gill was convicted, of an attempt to commit rape, and he brings error. Judgment reversed, verdict set aside, and a new trial awarded.

Howard B. Lee, Atty. Gen., and J. Lutber Wolfe, Asst. Atty. Gen., for the State.

C. L. Johnston and Willis & Ball, all of New Martinsville, for plaintiff in error.

HATCHER, J. This case comes from the criminal court of Marion county, where the defendant, a married man about 30 years of age, was found guilty of an attempt to commit rape on Gladys Hibbs, a girl 14 years old. The evidence of Gladys is that she and the defendant were alone for about 15 minutes in an automobile, with the lights turned off, one dark night near midnight, on a country road, during which period the defendant held her in his arms; that he put one hand under her dress; that she told him to stop, and he did stop; that he did not "get hold" of her body or any part of her person; that he did not say what he was trying to do; and that he did not try to have sexual intercourse with her.

In an attempt to commit rape, two things must clearly appear—the specific intent and an overt act. The intent cannot depend on mere speculation. It must be clearly shown. In re Lloyd, 33 P. 307, 51 Kan. 507.

"To sustain a conviction for assault with intent to commit rape, such intent at the immediate time of the alleged assault is an imperative necessity and must be proven." Huebsch v. State (Tex. Cr. App.) 251 S. W. 1079, 33 Cyc. 1434 (g).

The overt act must be one which directly tends to and demonstrates a present intention to at once accomplish the intercourse—it must be the "procuring or instrumental means of accomplishing or carrying out the completed act." Cromeans v. State, 129 S. W. 1129, 59 Tex. Cr. R. 611. The careful judge who wrote the opinion in the Cromeans Case further characterized the act as one which "under the circumstances of the particular case demonstrates a present intent to at once subject her to his will, she consenting or not, as that he may then at the very time have carnal intercourse with her." In the present case we find no solicitation or remark of any kind by defendant which explains his purpose. His intention must be gathered solely from his acts. Did holding the prosecutrix in his arms and putting his hand under her dress (but not touching her person) unmistakably demonstrate a present intention on his part to then and there have carnal knowledge of the girl whether she consented or not? If so, why did he not complete his plan? He evi dently had the girl in his power. The evidence discloses nothing to prevent or interfere with him during the period he and the girl were alone. If he had schemed all day to bring about an opportunity to attack the girl, as the state contends, it is unreasonable that he would have abandoned his purpose and desisted from his efforts until he had met with at least some physical resistance. Yet he stopped his improper advances upon the mere request of the girl that he do so. Lust strong enough to drive a man to attempt a crime so serious is not so easily balked. The Florida court has gone so far as to hold that:

"A conviction of the crime of assault with intent to commit rape will not be sustained upon proof that the assailant voluntarily desisted before the consummation, without any outside interferences and with no unusual resistance on the female's part." Sparkman v. State, 92 So. 812, 84 Fla. 151.

We doubt the application of the Florida rule to all such cases, preferring as safer a rule that, when improper advances terminate upon a mere request, when not met with unusual resistance, at a time and place when the female is apparently in the power of her assailant, such desistance should "weigh much in his favor." Lewis (a Slave) v. State, 35 Ala. 380. The advances of defendant were improper, and the liberties he took with the girl were indecent; but it is established law that improper advances and indecent liberties do not necessarily imply an attempt to know a female carnally.

"The intent is the gist of the offense, and every...