Commonwealth v. George

Opinion by

Obbady, J.,

The indictment in this case contains a single count and is drawn under the Act of May 19, 1887, P. L. 128, in which the defendant is charged with felonious rape of a woman child under the age of sixteen years. The jury was instructed by the learned trial judge that, “ If they were not satisfied beyond a reasonable doubt that the offense had been completed, there should be no conviction of rape, but that if they were satisfied from all the evidence that the .defendant had attempted to have intercourse with the girl, as detailed by her, without completing the offense, he should be acquitted of the felony and found guilty of an attempt to commit the same.” The verdict received and recorded was “ not guilty of the felony charged but guilty of an attempt to commit felonious rape.” The contention of the appellant, that a written paper which was inconsistent with the verdict and was returned to and received by the court, should be considered as the verdict is without merit, even though it was? through the mistake of a clerk, put on record. The verdict actually returned by the jury is all that we are concerned about and it appears that the written paper was a memoranda of their conclusion at a time when the law was not clearly understood by that body, and when properly instructed by the court, it was moulded into proper form, in the presence of the jury, who acquiesced in the corrections suggested by the trial judge.

The verdict was fully warranted by the evidence and to secure a conviction for an attempt to commit this crime it is not necessary to add a count in the indictment charging the defendant with assault and battery with intent to commit a rape.

The joinder of such counts has been held to be proper: Harman v. Commonwealth, 12 S. & R. 69; Shevick v. Commonwealth, 78 Pa. 460. This indictment was for the special crime mentioned in the statute. The defendant was prosecuted for that felony and by reason of the failure of the commonwealth to establish his guilt of the completed offense the verdict was just such as was contemplated by section 50 of the Criminal Procedure Act of March 31, 1860, P. L. 427, which was enacted to facilitate the conviction of offenders, and avoid unnecessary delay in the administration of criminal justice. It was not necessary to re-enact this section to have it apply to the act of May 19, 1887, as they are constituent parts of a system depending upon and relating to each other as intimately as if embraced in one enactment.

The judgment is affirmed.