Broaddus v. Commonwealth , 126 Va. 733 ( 1919 )

Sims, J.,

after making :the foregoing statement, delivered the following opinion of the court.

The assignments of error raise the questions which will be disposed of in their order as stated below:.

1st. Is the indictment insufficient in that it does not specifically charge that the assault was made “with the intent” to ravish and carnally know the prosecutrix against her will and by force ?

This precise question seems not to have been expressly decided in Virginia. It is, however, in principle^ free- from difficulty, and, as we shall see, the question has been ruled in the negative by analogous and also by direct authority elsewhere.

[1, 2] The‘indictment in the case in judgment is for an “attempt” to commit rape.. There is no question but that the “intent” to commit rape is an essential element of that crime. As said by Mr. Bishop, speaking of crimes which are malum in se, “The evil intent, being an element in every crime, must always be in some way alleged.” 1 Bish. New Cr. Procedure (4th ed.), p. 325. “But,” as this learned author also states, “when in the nature of the individual case it” (the intent) “is a part of the acts alleged, it need not. be separately stated. * * * In a large part of the crimes, the vicious will appear prima facie, in the act itself* hence to allege simply the act makes the required prima facie case, and any non-concurrence of the will therein is matter of defense.” Idem, p. 325. See also to same effect, Rex v. Phillips, 6 East 464, 472; Com. v. Hersey, 2 Allen (Mass.) 173, 180.

[3] And further: As laid down by the same eminent authority, and as is well settled, “The statutory terms, when an indictment is on a statute, must be followed.” 2 Idem, p. 45. And again: “Words of the Statute.—To the extent to which the statute defines the offense, leaving the rest, if anything, to the common law, it is ordinarily adequate * * * to charge the defendant with all the acts within the statutory definition, * * * without further expansión/ 1 Idem, p. 361. '

[4] The indictment in the case before us was under our statute, section 3888 of the Code, which, so far as material, provides as follows:

“Every person who attempts to commit an offense and in such attempt does some act towards its commission, shall * * *,” etc.

The indictment under consideration follows the statute in its use of the term “attempt,” without further expansion. It charges, however, an assault, and that the “attempt” was “to ravish and carnally know” (the prosecu-trix) “against her will and by force.” This was an act in its nature evil and an act, therefore, “prima fade evil also in intent; so this intent need not be alleged,” since the statute under which the indictment was found has not made the intent “affirmatively or descriptively an element of the offense.” 1 Bishop on Cr. Procedure, p. 327.

In Johnson v. State, 14 Ga. 55, 59-60, in holding the indictment involved in that case sufficient, the court said: “The grand jurors, in this-court, chargé the prisoner with an assault with intent to commit a rape. And in the body of the count it is alleged, that with force and arms he made an assault upon Susan Stallings, and forcibly ánd against her will, attempted to ravish her. It is argued that we must look to the body of the count for the character and description of the offense and that there the attempt is charged, and not an assault with intent to ravish.

“Is there any difference between an assault with attempt to ravish, and an assault with intent to ravish ? We do not deny that there is a distinction between an intent and an attempt to do anything. . The former implies the purpose only; the latter an actual effort to carry that purpose into execution. But the question is, whether in crimes, which require force as an element in their commission, there is any substantial difference between an assault with intent and an assault with attempt to perpetrate the offense? We think not.

“What is an assault? It is an attempt to commit a violent injury. Consequently, an assault with intent to commit a rape, is an attempt, by violence, to commit a rape. The verdict under this count was in conformity with the indictment. And we are the better satisfied with this conelusion as the Code declares that every indictment shall be sufficient which charges the offense so plainly that it may be easily understood by the jury. Under the first count, the jury must have understood that the defendant was charged with the offense of rapé. And under the second, with an attempt, by violence, to commit the crime.”

In State v. Hager, 50 W. Va. 370, 40 S. E. 393, the indictment was for an attempt to commit murder, and in holding the indictment sufficient without any express allegation that the acts done in the attempt to kill were done with the “intent” to murder, the court said: “* * * we grant, as claimed'by counsel for the defendant, that to constitute an attempt there must be an intent to commit the act, and some act done towards its consummation of such a nature as to constitute the attempt to commit the offense. Clark’s Case, and Uhl’s Case, 6 Gratt. (47 Va.), 675 and 706; 1 McClain’s Crim. L., s. 228. But the authority last cited at the same time distinctly says: ‘The allegation of the attempt implies the intent to do the act attempted. In •fact, the allegation of attempt implies both the intent and an actual offer to consummate the intent, and therefore such an allegation has been held in itself sufficient.’ It is a principle of pleading that whatever is included or necessarily implied from an express allegation, need not be otherwise averred. ‘When we say that a man attempted to do a thing, we mean that he intended to do, specifically, it, and proceeded a certain way in doing it.’ 1 Bishop’s Crim. L., sec. 729. It was held in Scott v. People, 141 Ill. p. 204 [30 N. E. 329], that where the statute uses the word ‘intent,’ it is necessary to charge it, but otherwise where the statute uses the word ‘attempt’ only, as ours does. The indictment uses the words of the statute. That case held good an indictment charging merely an attempt, and not an intent. ‘It seems impossible to doubt that the only distinction between an intent and an attempt to do a thing is that the former implies purpose only, while the later implies both the purpose and an actual effort to carry that purpose into execution.’ Hughes Crim. L. & Prac., s. 2751. This doctrine is sustained in numerous cases. Jackson v. State, 91 Ala. 55 [8 So. 773, 24 Am. St. Rep. 860]; Prince v. State, 35 Ala. 367; Johnson v. State, 14 Ga. 55. An indictment charging that the defendant ‘unlawfully, feloniously, after premeditation, deliberation and of his malice aforethought, did attempt to shoot, kill and murder,’ was held good, the court saying that ‘an attempt to kill necessarily implies an intent to kill.’ Felker v. State, 54 Ark. 489 [16 S. W. 663]. Other cases might be cited. So the indictment is good.”

In Atkinson v. State, 34 Tex. Cr. Rep. 424, 428, 30 S. W. 1064, the indictment charged an assault and an “attempt” by force to commit robbery. In holding the indictment sufficient notwithstanding its omission of an express allegation of the “intent” to commit robbery, the court said: “Appellant assigns as error the refusal of the court to quash the indictment in this case, and also the refusal of the court to arrest the judgment, which involves the validity of the indictment to charge the offense. The indictment charges that the appellant ‘did make an assault,’ etc., ‘upon one S. D. Knox, and, by putting him in fear of life and bodily injury, did attempt to fradulently take from the person and possession of the said S. D. Kjnox certain personal property,’ etc. The appellant insists that the indictment should have charged that the assault was made with the intent to rob and that the use of the word ‘attempt’ does not convey the same meaning, and vitiates the indictment. Webster defines an ‘attempt’ as follows: ‘To make trial or experiment of; to try; to endeavor.’ In 1 American and English Encyclopaedia of Law, p. 936, it is defined as ‘an effort or endeavor; an act tending towards the accomplishment of a purpose which exceeds a mere intent or design, but, falls short' of an execution of it.’ Mr. Bishop? (1 Criminal Procedure, section 80), says: ‘It seems impossible to doubt that the only distinction between an “intent” and an “attempt” to do a thing is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution. . Since, therefore, the word ‘attempt’ embraces the full meaning of ‘intent’, with something more,' it is not impossible that the courts may hereafter hold it to be an admissible substitute in' an indictment.’ Our Penal ’ Code, article 722, defines ‘robbery’ as ‘a fraudulently taking from the person or possession of another any property With intent to appropriate the same to the use of the taker by means of an assault,’ etc. The indictment in this case properly charges an assault, and then charges an attempt to fraudulently take personal property from the person, or possession of the assaulted party, with intent to appropriate same to the use of defendant. It is difficult to see how an assault could be made an a person, and at the same time an endeavor or effort made to fraudulently take from such person property in his possession, without such party entertaining at the time the intent to do what he was then endeavoring to accomplish; and, in our opinion, the allegation of attempt in this case, in the connection in which it is used, embraces the technical word ‘intent’ as used in the statute, and we accordingly hold the indictment good. Curry v. State, 4 Tex. Crim. App. 575; Hart v. State, 38 Tex. 383; Prince v. State, 35 Ala. 367; Johnson v. State, 14 Ga. 55.”

To the same effect, see Scott v. People, 141 Ill. 195, 203-4-5, 30 N. E. 329; State v. Daly, 41 Or. 515-17, 70 Pac. 706; Lewis v. State, 35 Ala. 380.

[5] Where' the statute under which the indictment is found expressly makes the “intent” descriptive of the offense, the prevailing rule of decision has heretofore been that the indictment must expressly allege the “intent.” State v. Ross, 25 Mo. 426; State v. Marshall, 14 Ala. 411. But, as we have seen, such is not true of the statute involved in the case before us.

[6] 2. Does the indictment sufficiently charge the acts done towards the commission of the offense?

This question has been expressly decided in the affirmative in Cunningham’s Case, 88 Va. 37, 40, 13 S. E. 309. In that case the indictment, with the exception of the names of the parties and the dates; was, in its- charge of the commission of the offense, in precisely the same language as in the case in judgment. This court, in holding the indictment sufficient, said: “The indictment in this case is for an attempt to commit rape, under section 3888, supra, and the charge is in the words of the statute charging the.'attempt. The act done towards the commission of the offense—that is, not' of rape, but of an attempt to commit rape—is that the defendant did, with force and arms, in and upon Martha Hartsook, then being over the age of twelve years—to-wit, of the age of fifty years—violently and feloniously made an assault, and her the said Martha Hartsook, then and there, to-wit, on the- day and year aforesaid, feloniously did attempt to ravish and carnally know, against her will and by force, etc.

“The plaintiff in error complains that this indictment did not charge or aver an act done in the attempt to commit the offense, and so that he is surprised when the evidence was offered to show that, in the night-time, while the said Martha Hartsook was in bed and asleep, he, the said plaintiff in error, laid his hands upon her and declared his purpose, and, 'when she called for help, threatened to choke her, and seized her by the shoulders to that end, when, help arriving in response to calls, the said plaintiff in error fled. The indictment distinctly charges the violent and felonious assault and the attempt to rape. If this be true, then an act was done by him in the attempt to commit rape. He made a violent assault, and attempted to commit rape. To charge this is to charge and aver an act done towards the commission of the offense; an assault is an act; no mere words can constitute an assault. The demurrer to the indictment was properly overruled; there was no error in that action of the corporation court of Bristol.” (Italics supplied.)

[7, 8] 3. Was there sufficient evidence before the jury to support their verdict in- finding the existence of • a felonious intent on the part of the accused?

The material portions of the evidence appear from the statement preceding this opinion. The purpose of the accused to have carnal- intercourse with the prosécutrix appears-from his own testimony. His employment of forcé to accomplish that purpose is sworn to by the prosecutrix, and also by the brother, in corroboration of her testimony. Their credibility was solely with the jury. See Glover’s Case, 86 Va. 382, 10 S. E. 420, and Lufty’s Case, 126 Va. 714, 100 S. E. 829, in which there was less evidence to support the verdict than in the case in judgment.

[9] In Woodson’s Case, 107 Va. 895-897, 59 S. E. 1097, 1098, strongly relied on for the accused, as this court in its opinion said, “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.” In the case in judgment there was, it is true, solicitation, but when that failed to accomplish the purpose of the accused, there was, according to the evidence for the Commonwealth, both threats and violence on the part of the accused used in his attempt to overcome the will of the prosecutrix.

The following should also be said of the cases mentioned below which are relied on for the accused upon the question under consideration, namely:

In Hairston’s Case, 97 Va. 754, 32 S. E. 797, there was an entire absence of any proof of the use of force by the accused.

In Christian’s Case, 64 Va. (23 Gratt.) 954, in view of the previous unchastity of the accused, the force used was held to be consistent with the theory that the acts of the accused were but evidence of solicitation.

[10] 4. Is the failure of the prosecutrix to make an outcry at the time of the alleged offense and her failure to make complaint until the return home of her mother and father the afternoon of the day of the alleged offense, evidence per se of the falsehood of her testimony?

As said in State v. Miller, 191 Mo. 587, 612, 90 S. W. 767, 775 “* * * the failure of such outcry is simply a fact tending to disprove the good faith of the charge, a circumstance, only of more or less weight depending upon the surrounding circumstances'; a failure to make it raises no presumption of law that the prosecutrix has sworn falsely; it is a circumstance to be weighed by the jury. (State v. Marcks, 140 Mo. 656, 1-c 661 and 662 [41 S. W. 973, 43 S. W. 1095].) And so, also of the delay in making complaint.”

And in the instant case the failure to make outcry loses its usual significance in view of the fact that according to the testimony for the Commonwealth, the threat of the prosecutrix to make outcry caused the accused to release her and take his departure so that there was no occasion for her to make an outcry.

And with respect to the failure to sooner make complaint, the prosecutrix in her testimony enters into an explanation of that, as appears from the statement preceding this opinion, which explanation is not in the nature of things incredible, and hence the credibility of all of this was for the jury.

The case before us is widely different from Harvey’s Case, 103 Va. 850, 49 S. E. 481, relied oh for the accused, where the complaint was not made until after the birth of a child and where the testimony of the prosecutrix was uncorroborated and was in many respects incredible.

The judgment under review will, therefore, be

Affirmed.