People v. Dowell
99 N.W. 23
Mich.
1904
Check Treatment
Gbant, J.

(after stating the facts). 1. This is an anomalous case. I have found no one like it in the books. The only act of familiarity previous to the alleged assault, testified to by the prosecutrix, was that at her own house, when he, in the presence of her mother and his own wife, followed her into the pantry, put his arm around her neck, kissed her, and invited her to his house. She does not testify to any other act of impropriety, or to any request for sexual" intercourse, or to any fondling of her person. So far as the record shows, she only inferred from his conduct what he desired. She shows a not very creditable knowledge of the meaning of sexual intercourse and its *309consequences. At the time of the alleged assault she does not testify that he made any proposition to her for sexual intercourse. If, as she testified, his wife and son were away, naturally he would have invited her into the house, instead of seeking to take her into an open shed along a public highway to accomplish a heinous crime. If she understood his object to be sexual intercourse when he took hold of her arm, and she said she was afraid of the consequences, and he then promised to get her a French safe, the language of his reply would hardly- justify the •conclusion that he contemplated intercourse at that time, but at some future time.

Under the statute (section 11489, 3 Comp. Laws), under an information charging rape a respondent can be convicted of the lesser offense of assault with intent to commit the crime of rape. People v. Courier, 79 Mich. 366 (44 N. W. 571); Hanes v. State, 155 Ind. 112 (57 N. E. 704); Liebscher v. State (Neb.) 95 N. W. 870. The intent is the gist of the offense, and every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have .sexual intercourse. Indecent liberties may be taken with a child without any such intent. The statute recognizes this in providing a penalty for taking indecent and improper liberties with a female child without intending to commit the crime of rape. Section 11719, 3 Comp. Laws. This court held that where the respondent put his arm around the waist of a child, with no offer or threat or request to be allowed to take any other liberties with her person, he was not guilty under the statute. People v. Sheffield, 105 Mich. 117 (63 N. W. 65). The language used in that case is equally applicable here:

‘ ‘ Such mere familiarity, participated in and consented to by the child, in the absence of indecent and improper liberties, between a man over 50 years of age and a girl under 14, who have been intimate and frequently in each .other’s oompany, does not constitute an assault.”

There is evidence from which it may be inferred that *310the respondent intended to have sexual intercourse with, the prosecutrix. In- cases of this kind it is the duty of the-court to carefully instruct the jury as to the distinction between improper liberties with the intent to have sexual intercourse and improper liberties without such intent. The court, in his instruction, said to the jury:

“As I said to you, she could not give consent, even though she might have been the one who solicited it. If he sought to do that with her with that intent, then he would be guilty.”

This certainly, standing alone, would be erroneous, because it would leave out the question of assault. Actual violence or actual assault is essential to the commission of this crime, even upon a girl under the age of consent. This language, standing by itself, would leave the jury to infer that it would be sufficient if he solicited the intercourse. It is due to the learned circuit judge to say that that was probably not what he intended, because immediately following he says that, if he did not assault her with that intent, then he would not be guilty. The jury, however, might be misled into considering that, if he approached her with that in view, this would constitute an. assault. For this reason- we think the charge was erroneous.

2. It was claimed that the respondent gave the prosecutrix a wheel on June 16th, and that he told her to tell her folks that one Lillie Aten let her take the wheel. The prosecutrix’s mother was permitted to testify to what her daughter told her afterwards in regard to this wheel. This was erroneous. It was hearsay testimony, and not-admissible under the rule permitting evidence of complaints made to others after the commission of the offense.

3. On cross-examination of respondent, under objection and exception, the following questions were asked •

“ Q. Do you know Gussie Poole?
“A. Yes, sir.
“ Q. Isn’t it true that about three years ago yon assaulted her in this same way ?
*311“A. No, sir.
“ Q. Put your arms around her ?
“A. No, sir.
“ Q. And took indecent liberties with her?
“A. No, sir.
“ Q. And isn’t it true that you told her you would buy her a dress if she would keep still ?
“A. No, sir.
“ Q. 'Well, you were sued for that, were you not?
“A. Yes, sir. * * *
“ Q. You were sued for doing that thing, were you ■not ?
“A. Why, I couldn’t say exactly; no.
“ Q. Do you say, Francis Dowell, that you don’t know whether you were sued for .putting your arm around G-ussie Poole and taking indecent liberties with her ?
“A. I think .that was it; yes, sir. * * *
“ Q. You know Gussie Poole’s mother ?
“A. Yes, sir.
“ Q. And isn’t it true that you offered to buy her a dress if she would let you do as you pleased with her ?
“A. No, sir.”

This method of cross-examination was condemned in People v. Gotshall, 123 Mich. 474 (82 N. W. 274). It appeared that, though the suit referred to had long been pending, it had never been brought to trial.

Conviction reversed, and new trial ordered.

The other Justices concurred.