
    The Commonwealth v. Fields.
    December, 1832.
    Rape — Attempt by Slave — What Constitutes — Case at Bar. — Upon an indictment on statute of 1822-3, ch. 31, § 3. it is found, that a free negro, not intending to have carnal knowledge of a white woman by force, but intending to have such knowledge of her while she was asleep, got into bed with her, and pulled up her night garment, which waked her, using no other force: Held, this was not an attempt to ravish, within the meaning of the statute.
    Case adjourned from the circuit superiour court of Rockbridge. Fields, a free negro, was indicted in that court, upon the statute of 1822-3, ch. 34, $ 3, for violently and felo-niously making an assault upon, and attempting to ravish, a white woman. The jury found the following special verdict: “We find, from the evidence, that the prisoner did not intend to have carnal knowledge of the within named S. L. as alleged in the indictment, by force, but that he intended to have such carnal knowledge of her while she was *asleep; that he made the attempt to have such carnal knowledge of her when she was asleep, but used no force except such as was incident to getting to bed with her, and stripping up her night garment in which she was sleeping, and which caused her to awake. If the law be for the prisoner, upon this finding, then we find him not guilty; but if against him, then we find him guilty; and, in that case, if the offence be not punishable by death, but by confinement in the public jail and penitentiary house, we ascertain the term of his imprisonment therein, to be six years.” Whereupon, the court, with the assent of the prisoner, adjourned to this court, the question, what judgment ought to be given on the special verdict?
    
      
      Rape — Attempt—Evidence of Force Necessary. — To sustain the charge of an attempt to commit rape there must be evidence of force, or of an intention on. the part of the offender to use force in the perpetration of the heinous crime, if it should become necessary to overcome the will of his victim. Hairston’s Case, 97 Va. 757, 32 S. E. Rep. 797, citing the principal case.
    
   PER CURIAM.

This court is of opinion, that upon the special verdict found in this case, judgment of acquittal ought to be rendered in favor of the prisoner.  