156 Ind. 255 | Ind. | 1901
Appellant was convicted of an assault with intent to commit rape. His motion for a new trial was overruled. The evidence is in the record, and its sufficiency to sustain tlie verdict and judgment is the principal question discussed. The undisputed facts are that the prosecuting witness is a married woman living with her husband on a farm in Delaware county. On May 21, 1900, the appellant, forty-nine years of age, was engaged in traveling the country in the business of selling tombstones and soliciting orders for medicines for rheumatism and female diseases. He traveled in a buggy, and was a stranger in the community. On the day named he called at the home of the prosecuting witness about 1 o’clock p. m. She was alone. Her husband at the time was thirty rods distant on the highway in conversation with a neighbor in view of the open porch in front of the house door. Neighbors lived near by. Appellant hitched his horse to the fence and stepped onto the open porch in front of.the door. The prosecuting witness continues the story- as follows: “He knocked at the door, and upon my going „to the screen he inquired how far it was to .Richard Stewart’s. I pointed him to where Mr. Stewart lived. • He then took hold of the door and said: ‘My name is Dr. Johnson, and maybe you will have some of mymedicih?.’ I replied, ‘No, sir"; not to-day.’ He then stepped .inside and said to, me: ‘You look hearty.’ I replied, ‘I am hearty.’ He kept approaching me and I kept stepping backwards until I had reached almost the ’middle of the room, when I thought I would go outdoors. I made for the door that he came in at, and he said I ought to have some of his remedies, and I said, ‘No, sir.’ He then wanted to know how long'it had been since
■The-prosecution, is. based upon the following .statutes: “Whoever, .perpetrates .an assault *; * ,-upon any human‘being;- with intent, to ¡commit a felony, shall, .upon conviction,”- etc. : §1982 Burns ,1894, §19Q9 Horner 189.7. “Whoever', having the -present ability to do - so, unlawfully •attempts to commit a violent injury on the person of another, is -guilty of an-assault.” §1983.Burns 1894,. §1910 Horner .1897. - “Whoever unlawfully has carnal knowledge of ¡a woman forcibly' against her, will is'guilty of rape.’? ’§.1990 Burns "1894', §l917Honier 1897*
an assault; to complete the offense there must be an unequivocal purpose of violence accomplished by an act which, if not stopped or diverted, would produce a battery.” Gillett on Crim. Law, §222. See, also, Cutler v. State, 59 Ind. 300; People v. Yslas, 27 Cal. 630, 633; Brown v. State, 95 Ga. 481, 20 S. E. 495; Johnson v. State, 43 Tex. 576; State v. Davis, 1 Ired. 125, 35 Am. Dec. 735; Berkeley v. Commonwealth, 88 Va. 1017, 14 S. E. 916.
Mere words, however impertinent or offensive, when not in the nature of threats, as we have seen, cannot be accepted ps establishing an attempt to commit a violent injury, and
Judgment reversed, with instructions to grant the appellant a new trial. The clerk will issue the necessary notice for a return of the prisoner,