Woodson v. Commonwealth

• Decision Date: 16 January 1908
• Citation: 59 S.E. 1097,107 Va. 895
• Court: Virginia Supreme Court
• Parties: WOODSON. v. COMMONWEALTH.

59 S.E. 1097

107 Va. 895

WOODSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 16, 1908.

1. Rape—Assault with Intent to Rape-Elements.

A charge of assault with intent to rape can only be established by proof of force or attempted force, coupled with an attempt to have sexual intercourse with prosecutrix against her will and notwithstanding her resistance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Rape, §§ 15-19.]

2. Same—Evidence.

On a trial for assault with intent to rape, prosecutrix testified that before dark, when returning home, she met accused, who stood in the path with a shotgun and, disguised by having his face blackened, seized her and said, "Hold on, I want some;" that she ran to a neighbor, and told him; and that the neighbor went to look for accused and could not find him. Held to justify a conviction for aggravated assault, but not for assault with intent to rape.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Rape, §§ 78-82.]

3. Criminal Law — Proof of Guilt — Evidence.

The guilt of accused cannot be inferred because the facts are consistent with his guilt, but they must be inconsistent with innocence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1261.]

Whittle, J., dissenting.

Error to Circuit Court, Buckingham County.

John W. Woodson was convicted of assault with intent to rape, and he brings error. Reversed, and new trial awarded.

Moon & Moss, for plaintiff in error.

The Attorney General and Sands Gayle, for the State.

HARRISON, J. The indictment in this case charges the accused with an attemptto commit rape upon a certain female. In such cases force is an essential element of the crime. To sustain the charge of an attempt to commit rape, there must be evidence of force, or of an intention on the part of the offender to use force, in the perpetration of the heinous offense, if it should become necessary to overcome the will of his victim. The crime of assault with intent to rape can only be established by proof of force or attempted force, coupled with an attempt to gratify the lustful desire, against the consent of the female, notwithstanding resistance on her part. Hairston v. Com., 97 Va. 754, 32 S. E. 797; Cunningham v. Com., 88 Va. 37, 13 S. E. 309; Christian v. Commonwealth, 23 Grat. 954; Jones v. State, 90 Ala. 628, 8 South. 383, 24 Am. St. Rep. 850; Dorsey v. State, 108 Ga. 477, 34 S. E. 135; State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; Green v. State, 67 Miss. 356, 7 South. 326.

In the case at bar the testimony of the prosecutrix is the only evidence showing the facts and circumstances attending the occurrence. She says that before dark on the 9th of January, 1907, she went to the spring, about one-fourth of a mile from her home, to get a bucket of water; that when returning the accused was standing in the path, with a double-barrel shotgun and his face blackened, though she could see the natural color of his neck and hands; that he followed her along the path, and when she had gotten about half way home he came up to her and seized her arm and said, "Hold on, I want some;" that she screamed, and ran to a neighbor's house, who lived about 200 yards from her home, and told him of the occurrence; and that this neighbor went down there with his gun but could find no one.

This evidence shows that the conduct of the accused was shockingly indecent and insulting, and, if believed by the jury, subjected him to a conviction for an aggravated assault; but the court is of opinion that it falls short of showing a felonious intent. However reprehensible his conduct, we are constrained to say that the testimony fails to show any attempt on the part of the defendant to employ any force whatever in the accomplishment of his purpose, whatever that may have been. There was no attempt to use force; no threat; only solicitation. The absence of all violence, and of evidence of any intention to use force, if necessary, to overcome the will of the prosecutrix, the time, and the place, invest the charge with improbability. The evidence is consistent with a desire on the part of the offender to have sexual intercourse with the prosecutrix; but there is no evidence of an intention to use force, if necessary, to gratify his desire—only persuasion.

"The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence." Hairston's Case, supra.

This conclusion makes it unnecessary to consider other assignments of error.

We are of opinion that the circuit court erred in refusing to grant the plaintiff in error a new trial, for which error its judgment must be reversed, the verdict of the jury set aside, and a new trial awarded.

Reversed.

WHITTLE J. (dissenting). I cannot concur in the opinion of the court in this case that the evidence for the commonwealth is insufficient to establish the corpus delicti, the attempted rape charged in the indictment.

The testimony of Mrs. Dunkum (a young married woman) bearing upon the essential fact of the attempted commission of the crime, which in many of its features is corroborated by other testimony, is certified as follows: "On January 9, 1907, she went to the spring about one-fourth of a mile...