88 Pa. Super. 227 | Pa. Super. Ct. | 1926
Argued April 12, 1926. The defendant appeals from a conviction upon a count in an indictment charging assault and battery with intent to ravish.
The first contention, as we understand it, is that the evidence does not establish that the assault and battery charged was committed upon the girl "with intent, forcibly and against her will, to have unlawful carnal knowledge" of her, as provided in section 93 of the Crimes Act of 1860, under which the indictment was drawn and which reads as follows: "Section 93. If any person shall be guilty of committing an assault and battery upon a female, with intent, forcibly and *229
against her will, to have unlawful carnal knowledge of such female, every such person shall be guilty of a misdemeanor, and on conviction, be sentenced, etc." It seems clear that the offense denounced by this section of the Act is assault and battery committed with the specific intent to accomplish the purpose forcibly and against the victim's will; and that consensual sexual intercourse with a female of any age is not within its terms (Commonwealth v. Miller,
Another contention of the appellant is that there was error in that part of the charge defining "reasonable doubt." The learned judge said that it is "such a doubt as would abide in your mind after a careful consideration *230
of the entire testimony that you have listened to, or such a doubt as would impel you to do or refrain from doing something of vital importance to your own personal affairs." He did not say that it was such a doubt, fairly arising from the evidence, that would cause a reasonable man to hestitate in an event of ordinary importance to himself (Commonwealth v. Bryson,
The only remaining complaint is that the learned trial judge should have directed a verdict of not guilty. As already stated, the child was under five years of age when the alleged offense was committed. The case was tried more than two years later. The child was the only witness who testified as to the assault. It is urged that her testimony was so vague, indefinite and unreliable that it would be unsafe to rest a conviction upon it, particularly in view of the time which elapsed between the date of the alleged offense and the trial. While there is some force in this argument our examination of the printed testimony has not convinced us it did not warrant the finding of guilt by the jury. The credibility of the girl was for that tribunal. The second assignment of error is sustained and all the others are overruled.
The judgment is reversed and a new trial is awarded. *231