Preddy v. Commonwealth
Supreme Court of Appeals of Virginia
184 Va. 765, 36 S.E.2d 549, 1946 Va. LEXIS 140 (1946).

[Mr. D.E. Preddy appeals a conviction for attempted rape on the grounds that he offered evidence that he was physically impotent. He claimed that the jury had been given an erroneous instruction that impotence is not a defense to the crime of attempted rape. He rested his argument that in an earlier Commonwealth case that held that since a boy under 14 years of age is legally incapable of cimmitting the crime of rape, a boy under that age could not be convicted of attempted rape because he could never be convicted of the completed crime. Essentially, Preddy was claiming that the crime for him was legally impossible. The actual medical evidence demonstrated that some trauma had occurred to the private area of the child that would normally have been inconsistent with normal playing activities and she had been alone with the defendant in a bedroom of the defendant's home.]

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D. E. Preddy, sixty-seven years of age, was tried upon an indictment, pursuant to the provisions of section 4767 of Michie's Code, which charged him with an attempt to rape Joyce Josephine Jackson, a female child of the age of ten years. He was tried by a jury which found him guilty and fixed his punishment at three years in the penitentiary. The defendant moved the court to set aside the verdict on the ground that it was contrary to the evidence and the law, but the court overruled this motion and pronounced judgment in accordance with the verdict.
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[On appeal] [t]he question whether or not an adult who claims to be impotent is incapable of committing the crime of attempt to rape is one of first impression.
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In Wharton's Criminal Law (12th ed.), sec. 223, it is said:

"If there be juridical incapacity for the consummated offense (e.g., infancy) there can be no conviction of the attempt; and therefore a boy under fourteen (14) cannot, according to the prevalent opinion, be convicted of an attempt to commit rape as a principal in the first degree. It is otherwise, where the incapacity is merely nervous or physical. A man may fail in consummating a rape for some nervous or physical incapacity intervening between attempt and execution. But this failure would be no defense to the indictment for an attempt. At the same time there must be apparent capacity."

In the case at bar, we are dealing with the question of alleged physical incapacity. "Impotency is a sufficient defense for the consummated offence, though not for an assault with intent." See Wharton & St. Med. Jur., sec. 20.

In an illuminating article in 78 Penn. Law Review, p. 971, it is stated:

"When a defendant, with rape in mind, and with the expectation of accomplishing penetration, seizes his female victim in the customary manner in order to achieve his purpose and finds penetration impossible, because of impotency, the authorities agree that he is guilty of a real criminal attempt to rape, and his impotency has no bearing on the case except possibly negativing the specific intention to accomplish penetration."

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We are of opinion that there is no error in the judgment of the circuit court and that it must be affirmed.

Affirmed.