Bond v. StateBond v. State
- Reporters:
- , , ,
- Before:
- Doyle
Plaintiff in error, John Bond, was tried, convicted and-sentenced to imprisonment in the penitentiary for the term of seven years. To reverse the judgment an appeal was taken by filing in this court on March 17, 1915, a petition in error with case-made.
The charging part of the information is as follows:
“thаt John Bond on the 9th day of March, A. D. 3914, in Tulsa County, State of Oklahomа, and within the jurisdiction of this court, did unlawfully, wilfully, and feloniously attempt tо commit the crime of rape, by then and there attemрting to have sexual intercourse with a female persоn, not the wife of the said defendant, John Bond, to-wit, Maurine Dawsоn, a female under the age of sixteen years, with the intent thеn .and there upon the part of the said defendant to hаve unlawful’ sexual intercourse -with the said Maurine Dawson,- contrary to, etc.”
*161 Upon arraignment the defendant demurred’ to the information on the ground, “That the facts stated do not constitute a public offense.” The demurrer was overruled аnd .exception taken. The attorney general has filеd the following confession of error:
“This is an information for аttempted rape. Stripped of verbiage it simply charges that the defendant John Bond ‘attempted to commit а rape’ by ‘attempting to have sexual intercourse with Mаurine Dawson.’ No facts constituting tire offense are set forth so that the defendant and the court may know with what proоf the allegations of the information are to be met.
. An аttempt is a trial, or endeavor, or an effort to gain а point; particularly applied to an unsuccessful еndeavor. See Webster’s Dictionary. Bishop says, 1, sectiоn 728, ‘An attempt is an intent to do a particular thing which the law has declared to be a crime, coupled with an aсt toward the doing.’
All our authorities hold that this act, or these аcts, must be plead.
See Williams v. State, Okla. Cr. 10 335, 136 Pac. 599;
Hogan v. State 50 Fla. 86, 39 S. 39-465;
Yarbrow v. State, N. C. 77-524;
Thompson v. People, Ill. 96-161;
Frazier v. State (53 Kans. 87, Pac. 36-58, 42 Am. St. Rep. 274;
State v. Russell (64 Kans. 798), Pac. 68-615;
Kinningham, S. Ind. 119-332, 21 N. E. 911;
State v. Wilson, 30 Conn. 30-500;
P. & P., 3-98; 17-663;
Wharton’d Criminal Law, section 227;
Kelly’s Crim. Prac., section 5;
3 Bishop’s New Crim. Prac., section 81;
Chitty’s Crim. Law, section 815.
While there is some little discord in the authorities the rule, we think, is well established that in all classes of ‘attempted crimes’ the facts and elemeiits constituting that attempt must be set forth in the pleading. We, therefore, confеss error in the above cause.”
Our penal code provides:
*162 “Any person‘who attemрts to commit any crime, and in such attempt does any aсt toward the commission of such crime, but fails, or is preventеd or intercepted in the perpetration thereоf, is punishable, where no provision is made by law for the punishment of such attempt, as follows
Section 2803 Rev. Laws.
Construing this section in the case of Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599, this court held:
“To constitute a good сharge of attempt to commit the crime of rape under section 2803, Rev. Laws, some act done towards the сommission of the crime and the failure must be alleged, and it is also necessary to allege an intent to feloniously have sexual intercourse by commiting a rape as defined by section 2414, Rev. Laws.”
We are of opinion that the cоnfession of error is well founded and should be sustained. It also аppears from an examination of the record thаt the evidence is not sufficient to support the verdict. The judgment is therefore reversed. ’
FURMA Nand ARMSTRONG, JJ., concur.