9 A.D.2d 979 | N.Y. App. Div. | 1959
Appeal from a judgment of the County Court of St. Lawrence County convicting the defendant of assault, second degree and impairing the morals of a child. The defendant was indicted for the crimes of incest, rape first and second degree, assault second degree, adultery and impairing the morals of a child. The indictment arose from an occasion on which the defendant allegedly had sexual intercourse with his 15-year-old daughter against her will. The daughter testified as to the defendant’s attack upon her and she stated that a penetration had occurred. The defendant denied the entire incident. The defendant contends that since the complainant’s testimony indicated that a penetration had occurred the crime of incest was established if her testimony was believed by the jury and the defendant could not be convicted of assault with intent to commit that crime. In 1886 the Legislature repealed a statute which had provided that no person could be convicted of an assault with intent to commit a crime when the crime intended was perpetrated (L. of 1886, ch. 593, repealing Rev. Stat. of N. Y., part IV, ch. I, tit. VII, § 26). It was pointed out in People v. Ghimino (270 App. Div. 114,115, affd. 296 N. Y. 554) that this did away with the doctrine of merger as evidenced by that statute. The defendant relies on People v. Aldrich (58 Hun 603, opinion in 11 N. Y. S. 464 [1890]) which held that since all the evidence in that case indicated the rape had been completed a conviction for assault second degree could not be upheld. The Ghimino case pointed out that the repeal of the above statute had apparently not been brought to the attention of that court. Furthermore, a reasonable doubt could have existed in the minds of the jury here as to whether there actually was a penetration. The complainant’s testimony on this point which was not completely
