dissenting:
I think that the Court’s opinion in this case is unsound and contrary to prior decisions of this Court. Therefore, I dissent.
*70In my view, only two questions are presented by the record herein: (a) Is the verdict of the jury valid, considering the indictment and the proof in support thereof, (b) Did the Intermediate Court of Kanawha County err in refusing to admit the evidence adduced by the defendant to show the likelihood of consent to sexual intercourse by the prosecutrix. The other and numerous points of the syllabus prefixed to the written opinion embodies principles which are argumentative and corollary to the two decisive questions. Therefore, I shall only discuss those questions.
The distinction set forth in the Court’s opinion between the instant case and the cases of State v. Collins, 108 W. Va. 98, 150 S. E. 369; State v. Prater, 52 W. Va. 132, 43 S. E. 230, in my opinion are nonexistent. Of course, the facts in State v. Collins, supra, and State v. Prater, supra, are not exactly precisely similar to the facts in the instant case. A moment’s consideration will disclose that in all human affairs, recurring factual situations as well as the objects of nature, are not precisely alike. Diversity and not uniformity is the rule.
The underlying principle enunciated in the cases of State v. Prater, supra, and State v. Collins, supra, is: If a defendant is charged with a crime and the proof sustains the charge, that notwithstanding such situation, the person may be convicted of a lower offense. In the Collins case, the defendant was charged with statutory rape. The proof tended to show the commission of rape. Nevertheless, the jury found the defendant guilty of attempt to commit rape. But, the court upheld the conviction and sentence. It was contended in the Collins case as is held in the instant case, that the evidence undeniably was sufficient to show the consummation of the crime, treating the evidence adduced by the state as true; that there was no testimony to establish an attempt to commit the rape. This Court rejected that contention in the language found in the body of the opinion. “If we upheld the contention of the defendant here that the verdict could not be sus-*71tamed because of want of evidence to support it, the same rule applied on another trial would lead inevitably to his discharge from further prosecution under the indictment. Justice would be mocked by such a holding.” [108 W. Va. 98, 150 S. E. 370] I apply the same comment to the holding of the Court in the instant case. The defendant has been acquitted of the principal crime of rape and the evidence is now said to be insufficient to establish the crime of attempted rape. Justice is mocked. In the Collins case, the Court cites for its authority the case of State v. Prater, supra. In the Prater case, [52 W. Va. 132, 42 S. E. 234], Judge Poffenbarger uses the following language: “ ‘They [the jury] illegally acquit and discharge the accused as to the higher degrees of crime charged in the indictment, after having found the [defendant] guilty. They have not exceeded the law, but stopped short of the law and of their duties. In other words, without warrant of law or moral right, they have exercised clemency, and dispensed what they conceived to be mercy.’ ” In the Collins case, the Court uses the following language: “So we may conclude, in accord with both law and reason, that the defendant here cannot complain that the jury found him guilty of an attempt to commit the offense, * * The comment made by Judge Wood in State v. Collins, supra, applies forcibly to' the instant case.
We have another instance in which this Court upheld a verdict in similar circumstances. It was held in the case of Moore v. Lowe, 116 W. Va. 165, 180 S. E. 1 that: “An indictment for accessory before the fact to murder will sustain a conviction of voluntary manslaughter.”
It is true that in order that a conviction for attempted rape be sustained, it must be proved beyond a reasonable doubt the specific intent to at once accomplish the crime and an overt act in pursuance of such intent. State v. Gill, 101 W. Va. 242, 132 S. E. 490. What more can be shown than was shown in the instant case? If the testimony of the prosecutrix be true, the overt act of defendant consisted of his holding her ankles while the rape was consummated, and in intercepting her when she tried to *72escape from the lustful embraces of defendant’s companion. Defendant having done such overt acts, cannot avoid the conclusion that he had an intent to aid and abet in the commission of the crime.
The statute adverted to in the case- of State v. Collins, supra, is the strongest kind of support for the validity of the verdict. The statute reads as follows: “On an indictment for felony, the jury may find the accused not guilty of the felony, but guilty of an attempt to commit such felony; and a general verdict of not guilty upon such indictment shall be a bar to a subsequent prosecution for an attempt to commit such felony.” Code, 62-3-18. The legislative mandate contained in the above quoted statute certainly authorized the jury to find the defendant guilty of an attempt and the trial court to sentence the defendant on such finding. See Cates v. Commonwealth, 111 Va. 837.
In the case of State v. Digman, 121 W. Va. 499, 5 S. E. 2d 113, the defendant had procured a colored man to commit the crime of rape upon the defendant’s wife. This Court held in the third point of the syllabus that: “A husband may be guilty as principal in the second degree of raping his wife under Code, 61-2-15.” It is to be noted that Code, 61-11-6 , providing for the punishment of principals in the second degree and accessories before and after the fact is entirely different from Code, 62-3-18, above quoted. Code, 61-11-6 provides for punishment. Code, 62-3-18 authorizes a jury to find the defendant guilty of an attempt, though charged with the commission of a greater offense.
The case of State v. Martin, 112 W. Va. 88, 163 S. E. 764 holds that, “Where, under an indictment charging two separate individuals with rape, one has been convicted of the crime charged, the other may be tried thereunder as a principal in the second degree, and, if convicted, punished as the principal felon.” In State v. Martin, supra, the facts are very similar to the facts in the case at bar.
State v. Wamsley, 109 W. Va. 570, 156 S. E. 75, is author*73ity sustaining the judgment and verdict in this case. As to overt act and attempt rape, see Preddy v. Commonwealth (Va.) 36 S. E. 2d 549; Glover v. Commonwealth, 86 Va. 382. An intent to commit rape may be shown by circumstantial evidence. State v. Tomlin, 124 W. Va. 264, 20 S. E. 2d 122. An indictment for rape includes the crime of attempted rape. State v. Collins, supra. See State v. Ferrand (La.) 27 So. 2d 174.
The conclusion cannot be avoided that the indictment was a valid charge and included the crime of attempted rape. The evidence, though fully sustaining the charge as to the principal offense of rape, is sufficient to support a verdict of an attempt to rape, and that the judgment pronounced thereon should not be set aside because the proof, though showing the commission of the crime of rape, does not sustain a verdict of guilty as to the lower offense. I think it is illogical to say that where an indictment charging a felony is sustained by proof, showing the commission of the greater crime, it fails to support a conviction of an attempt to commit that crime. Especially is this true under the provisions of Code, 62-3-18.
Coming to the question of the admissibility of evidence relating to the chastity of the prosecutrix proffered by the defendant. This Court in its opinion properly holds that evidence tending to show that the prosecutrix was guilty of larceny occurring after the commission of the crime of rape, that evidence tending to show that she was angered because she could not stay out late at night, and that prosecutrix was wont “to visit” with every man who came into her place of employment were properly rejected. These items of evidence relating to times subsequent to the rape were not relevant to the question of whether the prosecutrix was a virgin and of chaste character before the alleged rape.
But the Court holds that since the question of consent was involved, that- acts occurring before the rape relative to the prosecutrix’s reputation for sexual chastity were admissible. It is true that the cases of State v. Barrick, *7460 W. Va. 576, 55 S. E. 652; State v. Bruzzino, 65 W. Va. 628, 64 S. E. 1025 are authorities standing for the principle that the prosecutrix’s reputation for chastity, prior to the crime of rape, is admissible. State v. Martin, supra, and State v. Graham, 119 W. Va. 85, 191 S. E. 884 authorize the admission of evidence showing prior acts of illicit sexual intercourse on the part of the prosecutrix in certain circumstances. There is" a substantial difference of opinion between judges and writers on the law of evidence, with respect to the admission of testimony of this kind.
Starting with the proposition however, that it is admissible in this jurisdiction and analyzing the acts of the pros-ecutrix as shown by avowals made in the instant case as tending to show unchastity on her part. Those acts concerned her conduct in staying away from her room until a late hour at night; that she was asked to leave her lodging because of such conduct; and that a policeman who saw the prosecutrix on a public street in the City of Charleston admonished her to go home because of her scanty attire, the Court’s opinion states: “This testimony, offered by the defendant and refused by the court, may have only slight probative force, but it bears directly upon the question of prosecutrix’s character for chastity prior to the time of the alleged rape; * *
It is to be remembered that the prosecutrix was less than sixteen years of age, and that she came from a rural section in Lincoln County; that she did not have parental advice and supervision, and thus, her conduct, with reference to staying out late at night and wearing scant attire on a public street may be characterized, at its worst, as being indiscreet, but in opposition to this, we have the testimony of the physician who examined the prosecutrix a short time after the rape and who testified that she was a virgin.
It is a non sequitur to say that because the prosecutrix, unsupervised and unsophisticated as she undoubtedly was, was sexually unchaste because of her indiscreet conduct. I think that the evidence offered by the defendant to show *75that she had stayed out late at night and was scantily attired on a public street was irrelevant and that the trial court exercised proper discretion in excluding such evidence from the consideration of the jury.
I am authorized to say that Judge Given joins in this dissenting opinion, with respect to the sufficiency of evidence sustaining the verdict, but he does not join in that part of the opinion which discusses the admissibility of evidence, and joined in the reversal on that ground alone.
I would affirm the judgments of the Intermediate and Circuit Courts of Kanawha County.