131 Va. 762 | Va. | 1921
delivered the opinion of the court.
The defendant, Frank Lynch, was tried under an indictment containing two counts, the first charging that he broke and entered a dwelling house in the daytime with intent to commit rape, and the second merely charging him with an attempt at the latter offense. He was found guilty of assault and battery, and sentenced to a term in jail and the payment of a fine.
It is conceded by his counsel that, under the indictment for felony as above set out, the defendant could have been
The conflicts in the testimony were settled adversely to the accused by the verdict of the jury, and the case, as it comes to us upon the facts is as follows: On the afternoon of March 30, 1920, Mrs. Mary Martin was at home alone with her two small children, the elder of them being only two years of age. She heard a noise, or knocking, at the back door, and, on going to see what it meant, was met at the door by Frank Lynch, who said to her, “Say, Mrs. Martin, I want to kiss a white woman; I want to see- what it is like to kiss a white woman.” She replied, “No, sir.” And he thereupon put his hand upon her shoulder and said, “I didn’t mean to insult you.” At this juncture, she told him “to get out,” and he left.
The evidence was certified in narrative form. We have stated it from the Commonwealth’s standpoint as fully as it appears in the record. Was it sufficient to support the verdict?
“Any touching by one of the person or clothes of another in rudeness or in anger is an assault and battery.” Englehardt v. State, 88 Ala. 100, 7 So. 154; Jacobi v. State, 133 Ala. 1, 32 So. 158, 163; Hyde v. Cain, 159 Ala. 364, 47 So. 1014; Seigel v. Long, 169 Ala. 79, 53 So. 773, 774, 33 L. R. A. (N. S.) 1070.
In Goodrum v. State, 60 Ga. 509, a case holding that it is an assault and battery for a man, without any innocent excuse, to put his arm around the neck of another’s wife against her will, the court said: “To touch a virtuous wife In the way of illicit love is a far greater outrage than to touch her in anger, and equally a breach of the peace. It Is violence proceeding from lust, instead of violence proceeding from rage. It issues from the passion which, unrestrained, culminates in rape, instead of from the passion which culminates in homicide.”
Counsel for the accused cited and relied upon Section 604 of Wharton’s Criminal Law, where the author, in treating of assaults, says that if a man raise his hand against another within striking distance, and at the same time say, “If it were not for your gray hairs, I would tear your heart out,” it is no assault, because the words explain the act and take away the idea of an intention to strike. The doctrine as thus stated is sustained by respectable authority, and appears to be good law. It is not in point in this case however, because, as we have seen, the jury might properly have found that the accused intended to commit a trespass upon the person of the prosecutrix, and did not desist until after he had partially carried out that intention by placing his hand upon her.
The cases of Hardy & Curry v. Commonwealth, 17 Gratt. (58 Va.) 600, and Woodson v. Commonwealth, 107 Va. 895, 59 S. E. 1097, are also relied upon by counsel for the accused, but we find nothing in either of them to conflict with the conclusion herein reached. In the former, the definition
The judgment complained of is right, and should be affirmed.
Affirmed.