244 N.W. 244 | Mich. | 1932
John A. Gibbons appeals from a judgment of conviction of assault with intent to commit *97 rape. As only questions of law are raised, it is unnecessary to review the facts. The original information charged that "John A. Gibbous attempted to rape and ravish Lillian Bennett." At the trial, prior to the introduction of any evidence, and in the absence of the jury, respondent's attorney moved to quash the information on the ground that the testimony at the examination before the justice showed an attempt to seduce and not to rape. Thereupon the prosecuting attorney was permitted to amend the information so as to charge "assault with intent to commit rape." Respondent's attorney stated that he was willing to admit, for the purpose of argument, that the testimony at the examination did show the elements of assault with intent to rape, to some extent, but that the information could not be amended so as to charge a different crime. The court held that the "kindred" offenses were so "similar" that he would permit the amendment. He also refused to grant respondent a continuance.
It is claimed that the court erred in permitting the amendment and refusing to grant an adjournment, and also that there should have been a new arraignment and examination under the amended information. The charge in the original information was worded in accordance with the abbreviated forms in subsection headed "Attempt" under 3 Comp. Laws 1929, § 17258. It was in proper form. No bill of particulars was requested by respondent. Respondent claimed that an attempt to commit rape is a common-law misdemeanor and not a statutory offense. 3 Comp. Laws 1929, § 17342, distinctly provides a punishment for every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, *98
or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt. The punishment for attempting to commit rape under 3 Comp. Laws 1929, § 17342, subd. 2, is for a term of not over five years; that for assault with intent to commit rape is for a term of not over 10 years (3 Comp. Laws 1929, § 16728). One charged with rape may be convicted of assault with intent to commit rape, assault and battery, or simple assault. People v. Eddy,
It is claimed, however, that assault with intent to commit rape is a different crime entirely from an attempt to commit rape, and that the information charging one crime cannot be amended so as to charge an entirely different crime. The distinction between the two crimes is pointed out inPeople v. Gardner,
CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, and WIEST, JJ., concurred. *100