132 S.E. 490 | W. Va. | 1926
This case comes from the criminal court of Marion County, where the defendant, a married man about thirty years of *244 age, was found guilty of an attempt to commit rape on Gladys Hibbs, a girl fourteen years old.
The evidence of Gladys is that she and the defendant were alone for about fifteen minutes in an automobile, with the lights turned off, one dark night near midnight, on a country road, during which period the defendant held her in his arms; that he put one hand under her dress; that she told him to stop and he did stop; that he did not "get hold" of her body or any part of her person; that he did not say what he was trying to do; and that he did not try to have sexual intercourse with her.
In an attempt to commit rape, two things must clearly appear — the specific intent and an overt act. The intent cannot depend on mere speculation. It must be clearly shown. In reLloyd,
We recognize the province of the jury to pass on the facts. But when more than one deduction may be drawn from the evidence, the jury is not warranted in adopting the inference most unfavorable to defendant, unless those more favorable are unreasonable. "Though it is the province of the jury to find the facts, they may not deduce from a given or admitted state of facts the more unfavorable deduction unless the favorable deduction is excluded as unreasonable." Cromeans v. State,supra; Stark v. Com.,
The inferences more favorable to defendant are that his acts merely manifested a prurient mind, or were for the purpose *246 of ascertaining the attitude of the prosecutrix towards a lascivious embrace. These inferences are not unreasonable. In fact they are more consistent with reason than the deduction that his conduct was intended to be the "immediate means of subjecting her to his will."
Acts tending to show a criminal assault on a child are so revolting that it is difficult for the average jury to give the one accused the benefit of a reasonable doubt. Yet a defendant in such a case is just as much entitled to that benefit as he would be under any other criminal charge. In discussing the evidence relating to a charge of attempted rape in the Lewis case, supra, the Alabama court held in regard to Lewis, even though a slave, "To justify his conviction, however, the jury must be satisfied, beyond a reasonable doubt, that such was his purpose, and that his attempt had this extent."
The reports are replete with cases, in which the conduct of the defendants was even more contemptible than that of Gill, and in which the liberties taken were far more indecent than those taken by him, but wherein convictions were not sustained. See cases already cited, and Stoker v. State (Tex)
Holding that the facts proven do not sustain the verdict, we deem it unnecessary to discuss the other assignments of error.
The judgment of the lower court will accordingly be reversed, the verdict of the jury set aside, and a new trial awarded the defendant.
Judgment reversed; verdict set aside; new trial awarded. *247