31 N.W.2d 618 | Wis. | 1948
This is a writ of error to review a judgment of conviction of Vernice Eaton, plaintiff in error, for the offense of assault with intent to commit the crime of rape under sec. 340.48, Stats. The information was filed September 29, 1947. The complaining witness, sixteen years of age, was employed by Levi Lake as a domestic in his home. On the 7th day of August, 1947, she retired at about 9:15 p.m. on a couch in the parlor because the evening was very hot. This couch was near a bay window with venetian blinds fully drawn except the middle window. She slept for about two hours and awoke to see a man standing in front of the couch on which she was sleeping. He had a knife in his hand and got onto the couch with his trousers dropped. When she "hollered" he took her by the throat and told her, "You better shut up or you won't be able to talk when I get through with you," and continued to hold her by the throat with one hand until Lake, the owner of the home, intervened. He was choking the complaining witness when Lake appeared. When Lake demanded to know what was going on plaintiff in error left the room. Plaintiff in error claimed an alibi. The question presented is whether the record is sufficient to sustain a conviction for the offense of assault with intent to rape as charged in the information.
Claim is made that the overt act must be an effort to commit the physical act of intercourse and that the proof here at best shows an assault and is not sufficient to establish the offense charged. Plaintiff in error had been at this home on prior occasions to visit a man rooming there and was familiar with the premises. He had a knife in his hand and his trousers were down. He got onto the couch and was choking the complaining witness and threatening her if she screamed. He did not have sexual relations with the complaining witness' but the jury had a right to conclude from all the evidence that he intended to do so. This was a question of fact for the jury. It is considered there is ample evidence to sustain the verdict finding the plaintiff in error guilty of assault with intent to commit rape. See Skulhus v. State (1915),
Error is claimed because the court instructed the jury they must be satisfied beyond, a reasonable doubt the offense was committed "at or about the time stated in the information." The instruction is one uniformly used. It is a general rule the state is not formally bound to any date but may, within reasonable limits, prove the commission of the offense charged on any other date substantially corresponding with the date charged. Hawkins v. State (1931),
Plaintiff in error's motion for a new trial because of newly discovered evidence was denied. Whether it should have been granted rested largely in the discretion of the trial court and its decision will not be disturbed in the absence of a clear *424
abuse of that discretion. McGeever v. State (1941),
Other errors assigned have been carefully examined, and we find no merit in them.
By the Court. — Judgment affirmed. *425