Boyd v. State

¶1[Boyd was indicted for rape committed on a child of ten or eleven years of age, a young sister of his wife. *357The evidence was of a character which it is unnecessary to detail. The jury found the defendant guilty of an assault with intent to rape. He moved for a new trial, which was refused, and he excepted. The legal questions made were, whether the evidence authorized the verdict found, or whether it.showed an actual consummation of the rape, if any offense was shown, and whether the evidence authorized the court to charge as he did on that subject. The child on tvhom the offense was committed testified that the defendant violated her persbn. In one part of her testimony, she stated that he entered her person, but she did not know how far. In another part, she stated that he tried to do so. A physician testified that there had been no penetration, and he saw no rupture or sign of violence, when he examined her some three months after the time the act was done; that she had a venereal disease, and that the wife of defendant was similarly affected; that defendant himself did not have that form of disease, but another, at that time; but that it was possible for him to have recovered from the one and contracted the other; and that the disease which the child had could be communicated by contact, without actual intercourse. The court charged the jury on this subject, that if they believed from the evidence that there was an unsuccessful attempt made by the defendant to consummate the crime by taking hold of the girl’s person, they might convict him of an assault with intent to rape.]