Plaintiff in error was convicted in the circuit court of Mercer county of an assault upon Minnie Glancey, a girl thirteen years of age, with intent to commit rape, and was sentenced to the penitentiary.
The evidence for the People tended to prove an assault upon said Minnie Glancey, without her consent and against her will, with the intent charged, at the office of the defendant, who was a veterinary surgeon in Aledo, at about four o’clock in the afternoоn of August 31, 1900. The People, as a part of their case in chief, were permitted, against the objection of defendant, to introduce evidence that he had been drinking intoxicating liquors on that day; that while at dinner he was intoxicated, and that about an hour before the alleged assault he was drinking beer out of a bottle at his office, and that he called a boy sixteen years old across the street and treated him to beer. Defendant denied the assault and testified thаt he was not drunk, but on cross-examination he was compelled by the court to answer as to how much beer he had in a sack which he took to his office and how much he drank, and whether he invited the boy to drink, and whether he had whisky in his possession, and had been drinking and was drunk on the day succeeding the assault,-"'
Voluntary intoxication furnishes no excuse for crime. (Crim; Code, div. 2, sec. 19.) The law holds men responsible for the natural consequences of their acts, and if all the elements of a crime are present it is no defense that the accused was voluntarily drunk. But if a crime is of such a nature that a particular intent is a necessary ingredient, and no crime is committed unless an act is done with that intent, a defendant may meet the charge of a crime by showing that he was intoxicated to such a degree as to be incapable of forming or entertaining that intent, and neither then nor afterward yielded it the sanction of his will. (Bishop on Crim. Law, sec. 413; Bartholomew v. People,
As a general rule, where a party is on trial upon a criminal charge, proof of his misconduct not connected with the charge upon which he is being tried should not be admitted, as such evidence is likely to prejudice the jury against the defendant and cause them to lose sight of the issues which they have been sworn to try. Gifford v. People,
In Gifford v. People, supra, on page 214 it is said: “On the cross-examination of Prosper Washburn, a witness introduced by the defendant to prove former good character, he was asked, ‘Have you not heard people say that he (alluding to the defendant) was a gambler or gambled?’ This was objected to, but the objection was overruled by the court, and the witness answered that he had heard some say that he gambled. Again, when the defendant gave evidence in his own behalf, he was compelled, over his counsel’s objection, to state that he had visited houses of ill-fame in Cleveland and Chicago, and the number of times, and of having had connection with their inmates, and also that he had played cards for money. We have no doubt this evidence seriously prejudiced the defendant with the jury. Evidence of prior misconduct is never admissible in a criminal trial unless it be to prove prior malice towards an individual, or guilty knowledge, neither оf which can have pertinency in cases like the present. (1 Wharton on Crim. Law,—7th ed.—sec. 639; Roscoe on Crim. Evidence,—5th Am. ed.—p. 97; 1 Phillips on Evidence,—Cowen, Hill & Edwards’ notes,—p.765.) And particular acts of misconduct are never admissible in rebuttal of proof of defendant’s good character. (McCarty v. People,
In Hayward v. People, supra, on page 502 the court say: “On cross-examination of the accused when on the stand as a witness, the court compelled him, against objections interposed, to testify that he had frequented other saloons in Chicago, and drank, and played cards and billiards on divers times at other saloons in Chicago. This, we think, was error, and may have prejudiced some of the jurors against the accused. We cannot perceive that these circumstances have any legitimate bearing upon the issue in the case, or that they were competent as bearing upon the credibility of the accused.”
In Baker v. People, supra, on page 459 we say: “Assuming the evidence of the prosecutrix to be true, it established two distinct offenses,—one committed by Baker alone, and the other by him and Mrs. Graves jointly; and if the prosecution elected to proceed for the latter offense, all evidence of the former should have been excluded from the jury, as it is well settled that upon the trial of a party for one offense growing out of a specific transaction you cannot prove a similar substantive offense founded upon another and separate transaction, but in such case the prosecution will be put to its election. An exception to this rule is found in prosecutions for passing counterfeit money, and the like, where previous attempts to pass counterfeit money may be proved for the purpose of showing guilty knowledge; but the principle involved in this class of cases has no application to the case in hand.”
In Farris v. People, on page 528 we hold: “The general rule, that evidence of a distinct, substantive offense cannot be admitted in support of another offense, is laid down by all the authorities. It is, in fact, but the reiteration of the still more general rule, that in all cases, civil or criminal, the evidence must be confined to the point in issue, it being said, however, by authors on the criminal law, that in criminal cases the necessity is even stronger than in civil cases of strictly enforcing the rule, for where a prisoner is charged with аn offense it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the trausaction which forms the subject of the indictment and matters relating thereto, which, alone, he can be expected to come prepared to answer. (3 Russell on Crimes,—5th ed. —368; 1 Roscoe on Crim. Evidence,—8th ed.-—92.) ‘No fact which, on principles of sound logic, does not sustain or impeach a pertinent hypothesis is relevant, and no such fact, thereforе, unless otherwise provided by some positive prescription -of law, should be admitted as evidence on a trial. The reason of this rule is obvious. To admit evidence of such collateral facts would be to oppress the party implicated, by trying him on a case for preparing which he has no notice, and sometimes by prejudicing the jury against him. * * * To sustain the introduction of such facts they must be in some way capable, as will presently be seen more fully, of being brought into a common system with that under trial.’ (Wharton on Crim. Evidence, sec. 29.) ‘In criminal cases there are peculiar reasons why the test before us should be applied to proof of collateral crimes.’ (Ibid. sec. 30.) ‘This rule,’ says Greenleaf, vol. 1, sec. 52, (not confining it to criminal cases,) ‘excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact оr matter in dispute,—and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them; and, moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it.’ In Sutton v. Johnson,
Counsel for the People say, however, that intoxication does away with moral restraint and that liquor incites to evil actions and renders a person more liable to commit crime. If that is so, they have found no authority for the admission of evidence that one accused оf crime had a mind susceptible to evil thoughts or without moral restraint, either as a temporary or permanent condition. The only effect of the evidence was to prejudice the jury against defendant on account of an evil habit, and because he had done wrong in drinking and giving drink to the boy. It was prejudicial error to admit it.
The defendant was forty years old, and the girl, Minnie Glancey, was thirteen years of age. She testified to an assault by the defendant which was forcible and аgainst her will and which she resisted. She said that she screamed and ran away from the office. The screams were heard by others, and the fact that she cried out was not denied. Defendant’s explanation was, that he proposed to put a lotion on á sore on her arm; that she said, “No, sir;” that he took hold of her to put her dress sleeve up, and that she gave a little scream as if she was frightened and made for the door and went out.
Defendant asked the court to give to the jury instructions numbered 13 and 14, directing them to find him not guilty unless they believed, from the evidence, beyond a reasonable doubt, that he committed an assault upon said girl with intent to have carnal intercourse with her at all events against her will and without her consent. The court refused to give said instructions, and gave instruction numbered 2 asked by the People, as follows:
“The jury are instructed that if you find, from the evidence, beyond a reasonable doubt, that on the date mentioned in the indictment the dеfendant was above the age of sixteen years and that the prosecuting witness was under the age of fourteen years; and if you further find, from the evidence, beyond a reasonable doubt, that the defendant and the prosecuting witness were then in the office of the defendant, and that the defendant then and there had the intent and purpose to have carnal intercourse with Minnie Glancey, either with or without her consent, and that in pursuance of and in furtherance of such intent and purpose the defendant then and there did acts toward the accomplishment of such intent and purpose, and that he had then and there the present ability to accomplish such intent and purpose, then you should find the defendant guilty as charged.”
The ruling of the court on these instructions is claimed to be erroneous because an assault must necessarily be an attempt to do an injury with violence, and therefore the statute, which makes the consent of a girl under fourteen immaterial, does not extend to the assault which cannot be committed with her consent. In view of the evidence the question does not seem important. All the evidence for the People tended to prove a violent assault, and the defendant absolutely denied any attempt at all. There was no evidence tending to prove that the defendant sought consent with no intention to use force and voluntarily desisted from unsuccessful persuasion. The рrinciple stated in the instruction is correct and according to our decisions, although the authorities are not uniform on the subject. That view was adopted in Porter v. People,
The statutes bearing on the question are as follows: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Crim. Code, div. 1, sec. 20.) “Rape is the carnal knowledge of a female, forcibly and against her will. Every male person of the age of sixteen years and upwards, who shall have carnal knowledge of any female person under the age of fourteen years, either with or without her consent, shall be adjudged to be guilty of the crime of rape.” (Crim. Code, div. 2, sec. 237.) “An assault with intent to commit * * * rape * * * shall subject the offender to imprisonment in the penitentiary for a term of not less than one year nor more than fourteen years.” (Crim. Code, div. 1, sec. 23.)
The purpose of the statute is that a girl under fourteen years of age shall be incapable of consenting to an assault upon her for the purpose of carnal intercourse, and that in law such an assault is without her consent and against her will. Even in the case of an adult woman and without a statute, if she is incapable of consenting through idiocy, unconsciousness or the like, the law assumes that intercourse with her is without her consent and the offense is rape. The statute extends the principle to girls under fourteen years of age on account of immaturity of judgment and want of comprehension of the consequences of an attempted wrong to them, and, by providing that they cannot consent, supplies all the essentials of an assault, regardless of force. Commonwealth v. Roosnell, 8 N. E. Rep. 747; People v. Courier,
The instruction is also objected to as not requiring proof of an overt act by the defendant to accomplish the purpose of having carnal knowledge of the girl. The acts must amount to an attempt to accomplish such purpose, and in that respect the instruction is not as definite as- it should be as a general rule of law. In this case the acts referred to could only be the violent attempt testified to on one side and denied on the other, and the instruction could not have misled the jury into an understanding that it referred to acts falling short of an attempt.
Objection is also made to an instruction defining reasonable doubt, as a verbose dissertation on the subject, requiring more explanation and elucidation than the words it undertakes to define. Perhаps the words are as plain, exact and readily understood as the explanations and paraphrases by which the instruction attempts to enlighten the jury; but all that is contained in it has been said by the courts in discussing the subject, and the explanations are all correct. It is the same instruction given in Bean v. People,
The court refused instruction numberéd 11 asked by defendant, as follows:
"The jury are instructed that each juror should decide for himself, upon his oath, from the law and the evidenсe, as to what his verdict should be. It is the duty of jurors, in considering of their verdict, to consult with each other, but no juror should yield his deliberate, conscientious convictions as to the guilt or innocence of the defendant at the instance of his fellow-jurors, nor surrender his honest convictions as to the guilt or innocence of the defendant for the sake of unanimity or to avert a disagreement.”
A similar instruction was refused in Little v. People,
Instruction numbered 12 was asked by defendant and refused, as follows:
“The jury are instructed that the law not only presumes that the defendant is innocent until he is proven guilty beyond any reasonable doubt, but' the law also presumes that the defendant has a good character and reputation as a law-abiding, peaceable citizen until the contrary is shown by the evidence, and it is not necessary for the defendant to prove his reputation in that respect. The jury is not at liberty to consider the omission to prove good character as a circumstance against him, but must presume that he is a man of good character and reрutation in that respect,—and that, without any proof on the subject,—and should take the .good character of defendant into consideration in making up their verdict.”
Defendant had á right to put his reputation as a law-abiding citizen in issue if he saw fit. (Jupitz v. People,
There is a question as to a variance in the name of a juror that will not arise on another trial, and no other question is raised of such importance as to require attention.
Because of the error in admitting evidence the judgment is reversed and the cause remanded.
/Beversed and, remanded.