
    *DECEMBER TERM 1833.
    JTJDGBS PRBSBNT. „
    
      Smith,
    
    
      Daniel,
    
    
      A. Taylor,
    
    
      Field,
    
    
      Scott,
    
    
      F. 1>. Taylor,
    
    
      I.eigh,
    
    
      Estill,
    
    
      Fry,
    
    
      Semple.
    
    The Commonwealth v. Watts.
    December, 1833.
    Arrest oí Judgment. — Judgment cannot be arrested for any matter of fact not appearing in the record.
    Rape — Attempt by Slave — Statute — Construction— ‘•White Woman.” — A white girl under twelve years of age. and not having attained to puberty, is a white woman, within the meaning of the statute making it felony punishable with death, for a slave, free negro or mulatto, to attempt to ravish a white woman.
    Case adjourned from the circuit superiour court of Westmoreland. At October term 1833, Watts, a free negro, was indicted (upon the statute of 1822-3, ch. 34, \ 3), and tried, for violently and feloniously making an assault upon, and attempting to ravish, one J. B. described in one count of the indictment, “a white woman unmarried,” and in another, “a white maid.” The jury found him guilty. Whereupon, he made a motion in arrest of judgment, because J. B. the female upon whom the attempt to commit the rape was charged in the indictment, was, at the time of the offence, under the age of twelve and above the age. of ten years, and so was not a white woman, within the meaning of the statute on which the prosecution was founded. The court certified that it was proved at the trial, that J, B. was, at the time of the offence committed by the prisoner, and *yet was, a white girl, of the age of eleyen going on to twelve years, and had not attained to puberty; and then, with the prisoner’s consent, adjourned to this court, the question presented by the prisoner’s motion • in arrest of judgment, and all other questions arising on the record of the proceedings, and, generally, what judgment ought fo be given?
    
      
      Arresto! Judgment. — Amotion in arrest of judgment lies only to correct an error that is apparent on the face of the record. Gray’s Case, 92 Va. 776, 22 S. E. Rep. 858, citing principal case as its authority. See further, monographic note on "Judgments" appended to Smith v. Charlton. 7 Gratt. 425.
    
   PER CDRIAM.

As to the motion in arrest of judgment, the fact on which it was founded, not appearing on the record, this court is of opinion, that it should be overruled.

The circuit superiour court having certified to this court the facts proved at the trial, it might, perhaps, be in the power of this court to direct a new trial, if the circumstances of the case should seem to this court to warrant it. But the court does not think there is any distinction between a violence of this kind, practised upon a female between the age of ten and twelve years, and a similar violence practised upon one above the age of twelve. Both are equally rapes. If this was not so, the chastity of women between the age of ten and twelve years would be very inadequately protected. It is most manifest, that the statute’l Rev. Code, ch. 158, § 3, p. 585, punishing the deflowering of children under the age of ten years, does not apply to the case of an attempt to ravish a female of the age of J. B., that is, between eleven and twelve, at the time the offence was committed of which the prisoner has been convicted. And the statute of 1822-3, ch. 34, § 3, enacls, that‘‘if any slave, free negro or mulatto, shall attempt to ravish a white woman, married, maid, or other,” such offender shall be adjudged guilty of felony, and suffer death &c.

This court is of opinion, that sentence of death ought to be passed upon the prisoner.  