delivered the opinion of the Court.
The plaintiff in error was indicted for rape. Upon his trial the jury found him guilty, fixed his punishment at death, and the trial court entered judgment in accordance with the verdict. To that judgment this writ of error was awarded.
Several grounds of error are relied on in the petition and in the written and oral argument of counsel for the accused, but the record does not show that any exception was taken to the rulings of the trial court, except its refusal to set the verdict aside because contrary to the law and the evidence, and its overruling the motion of the accused in arrest of judgment. The refusal of the court to set aside the verdict and to arrest the *857judgment are, therefore, the only assignments of error that can he considered by this conrt.
It is settled law in this state that motions for new trials are governed by the same rules in criminal as in civil cases. Grayson's Case, 12 Gratt. 717, 727.
It is also well settled that an appellate court, upon a motion to grant a new trial because the verdict of the jury is contrary to the evidence, will not reverse the judgment of the trial court and award a new trial unless it finds that the evidence, considered as on a demurrer to evidence, is plainly insufficient to warrant the finding of the jury; and that the appellate court will not be justified in granting a new trial, even if its members should think that if they had been on the jury they might have found a different verdict. Hill’s Case, 2 Gratt. 595 ; Kates’ Case, 17 Gratt. 561; Bull’s Case, 14 Gratt. 613, 621, 622; Robertson’s Case, 2 Va. Dec. 142; 22 S. E. 359; Nicholas’ Case, 91 Va. 741, 755, 21 S. E. 364.
It is insisted that the verdict is not sustained by the evidence upon three grounds: First, that the corpus delicti was not proved; second, that the accused was not identified as the party who committed the offense; third, that the evidence shows that the accused could not have been present when the crime was perpetrated.
The corpus delicti and the identity of the accused as the perpetrator of the crime were testified to directly and positively. The record shows that on the evening of September 9, 1906, which was Sunday, Forest Gooding and Mabel Risley, who were then engaged to be married and who were married before the trial of this case, went to Luna Park, in Alexandria county. They spent the evening in' the park, visiting places of amusement until the lights were turned on. They then left the park and strolled up the road between the street car tracks and the park fence, and at the end of the fence turned to the left and walked along a path which led to a spring in the woods. After going a short distance beyond the spring they turned to come *858back, when they saw a negro man lying or sitting down near the path. When they got opposite to him he arose with a pistol in one hand and a cltib, about three feet long and two inches in diameter, in the other hand. He pointed the pistol at Gooding and told him he was going to kill him, and after some words struck Gooding, who attempted to ward off the blow, on his left shoulder and on the left side of his head, but did not knock him down. Gooding turned around and went a few steps when he fell to his knees from the force of the blows. He got up and ran toward the park gate for help, and in a few minutes came back with some members of the special police force. After Gooding was struck Miss Risley started to run, whereupon the negro aimed his pistol at her and told her he would kill her if she ran. She stojoped and he seized her by the throat. While he was choking her she screamed “murder!” and he again threatened to kill her. He then threw her down, placed his hand over her mouth, and, notwithstanding her struggles and efforts to prevent it, ravished her, and afterwards robbed her of $15.03 and two gold rings, and walked off. Immediately after-wards, and while Miss Risley was'getting up, Gooding and'a special police officer arrived. In a few minutes other members of the police forced reached her. She at once told them that she had been ravished and robbed by a man whom she described as a big, square-shouldered, black negro, wearing dark clothes, whom she could identify anywhere, and that she could recognize his voice anywhere. The evidence also showed that there were bruises upon her neck and legs, and her private parts were swollen.
On the 16th of September, a week after the assault, the accused was arrested upon another charge upon which he could not be held, but was detained in custody because he answered in a general way the description given at police headquarters of the assailant of Miss Risley. On the 22 d of that month Miss Risley, together with Gooding, was brought to the jail where the accused was in custody with a number of other pris*859oners to see if she could identify her assailant. She was told hy the officer who accompanied her to look at the prisoners who were to be brought down without saying anything or pointing at any of them. Six or eight prisoners were then brought in, all of whom were negroes except one. After looking over the prisoners the officer asked if she was satisfied and she replied that she was. Upon going outside of the enclosure where the prisoners were she was asked if she saw among them the man who had assaulted her. She replied that she did, and that he was the second man on the right. That man was the accused. The officer had the accused brought out where they were and spoke to him, in order that Miss Risley might hear his voice. She said again that she was sure he was the man— that she recognized him and knew his voice. Gooding also identified the accused at the jail as the man who had assaulted him. Both Miss Risley and Gooding at the trial testified positively as to the identity of the accused, and when they were asked if they knew that their statements as to his identity might send him to the gallows they both replied that they did, but they were sure he was the man.
The precise time at which Miss Risley was assaulted does not clearly appear. The officers who accompanied or followed Gooding to the scene of the assault differ in their statements as to the time they reached Miss Risley, some fixing the time as early as eight o’clock and one as late as from 8:15 to 8:30. Some of the witnesses say it was between sundown and dark, others not quite dark, and another “good dark.” The evidence .does not show that when Miss Risley was assaulted it was too dark for her to get such a view of her assailant as to be able to identify him. She stated that she did see him and could recognize him anywhere. To the same effect was Gooding’s statement. The deputy sheriff who did not reach Miss Risley until some minutes after the assault testified that it was then light enough to recognize a person standing near.
The accused introduced several witnesses who testified that *860they were present at the jail when Miss Eisley claims that she recognized the accused as her assailant, and that she did not do so. Some of them say she pointed out a negro known as “Alabama Joe” as her assailant, another that she pointed out a negro named Johnson. These witnesses are not only contradicted by Miss Eisley and the officer who took her to the jail and who sustains her as to what took place there in every material particular, but they contradict each other.
To establish the alibi relied on the accused testified that he had never seen Miss Eisley until he saw her at the jail; that on the evening of the assault he got a horse and buggy from Harrington’s livery stable between 2 and 3 o’clock, took his wife and one Susie Bird out driving, and returned the horse and buggy to Harrington’s stable that night at 8 o’clock. The accused proved by Harrington that he did get a horse and buggy from his stable between 2 and 3 o’clock the evening of the 9th of September, 1906, in the name of Mr. Hugent, who the accused said wished to take his wife out driving. Harrington further testified that he did not get back with the horse and buggy until after night, but he did not know the time. The accused also introduced Hannah Thomas, the woman whom he claimed to have driven out as his wife. She testified that on the evening of the 9th of September the accused had taken her and Susie Bird in his buggy to the new depot on the western side of the city of Alexandria. They got back from there about 6:30 or 1 o’clock, and they drove around the town until 8 or 9 o’clock, when they returned to the livery stable, delivered the horse and buggy and went home.- Hpon cross-examination she said she. thought it was the 19th of September when the accused drove her out and they returned to the livery stable about 1:30 or 8 o’clock; that she was a married woman and the accused was a married man. She had separated from her husband and the accused from his wife; that she cohabited with the accused, but was not married to him. Susie Bird was not introduced as a witness.
*861In rebuttal the Commonwealth placed Mr. Nugent on the stand, who testified that on the 9th of September he was living in Alexandria city, about six squares from Harrington’s stable. The accused told the witness that it was necessary for him (the accused) to be in Washington that afternoon to attend to some business, and he let him have $2.00 to get a horse and buggy from Harrigton’s stables. About 8:30 or 9 o’clock that evening the accused drove to his (Nugent’s) house. ■ The horse was wringing wet with sweat and fagged out, and he told the accused that if he killed the horse he (Nugent) would have to pay for it, and not to take the horse back to the stable until it had rested and dried off. He knew it was between 8:30 and 9 o’clock when the accused drove to his house, because the clock was striking 9 when witness went back into the house. How far it is from Luna Park to the city of Alexandria does not appear, but Nugent testified that he could drive from Luna Park to his house in twenty or twenty-five minutes, and Harrington, a witness for the accused, testified that one could drive from Luna Park to his stables in about fifteen minutes in an ordinary gait. There was, therefore, sufficient time, according to the evidence, for the accused to have committed the crime for which he was indicted and to have reached Mr. Nugent’s house between 8:30 and 9 o’clock, driving at an ordinary gait—certainly at the speed at which the horse’s condition showed it had been driven.
There is no question of law involved in the case. The guilt or innocence of the accused is purely a question of fact. If the witnesses of the Commonwealth were worthy of credit (and of that the jury were the exclusive judges) there can be no question, as it seems to me, that the verdict is neither contrary to the evidence nor without evidence to support it. "Where a cause depends upon the credibility of witnesses, upon the tendency and weight of the evidence, and the jury and the judge who tried the cause concur in the weight and influence to be given to that evidence, it would be, as was said by this court in Bios*862ser v. Harshbarger, 21 Gratt. 214, 216, “an abuse of tbe appellate powers of tbis court to set aside a verdict and judgment because tbe judges of tbis court, from tbe evidence as written down, would not have concurred in tbe verdict.”
Tbe assignment of error that tbe trial court erred in overruling tbe motion in errest of judgment seems not to be relied on, and properly so, as there is no ground upon wbicb to base it.
I am of opinion, therefore, to affirm tbe judgment of tbe Circuit Court.