41 Minn. 285 | Minn. | 1889
The defendant was indicted and tried for the crime of rape, committed by forcibly overcoming the resistance of the female. The jury found him not guilty of the'offence charged, but guilty of an assault in the second degree, which, as applied to the evidence and charge of the court in this case, is an assault with intent to commit a felony, to wit, rape. Penal Code, § 187, subd. 5.
1. On the trial the prosecutrix positively identified the defendant as the person who entered her house in the night and committed the crime; and one Jacobson, a witness for the state, testified to meeting the defendant on the street in the village of Springfield, between 1 and 2 o’clock on the night of July 24, 1888, — the time and place of the commission of the crime. A mótion for a new trial was made
2. Whether the evidence showed that resistance on part of the prosecutrix was so continued and persistent as to render the defendant’s act rape is unimportant, for the reason that the jury have acquitted him of that crime.
Complaint is made that the cpurt failed to instruct the jury what would constitute an assault in the second degree under the facts in evidence in the case. It is sufficient answer to this that the court was not requested to do so, and no exception taken to his not doing it. He did instruct the jury in effect that to find the defendant guilty of that offence they must find that he assaulted the woman with intent to commit rape, also as to the amount of force necessary to constitute rape; and the intent to commit rape clearly implies an intent to use the necessary force. As the learned judge himself says, it might have been better to have expressly instructed the jury that to constitute an assault with intent to commit rape, force must have been used before consent was given or resistance desisted from. But as tHfere was no evidence from which the jury could have found that any consent was given before the defendant used force, the charge must be construed with reference to the evidence. If defendant’s counsel thought any more explicit charge on this point would be of benefit, he ought to have requested it to be given. State v. Johnson, 37 Minn. 493, (35 N. W. Rep. 373.)
There was no error in refusing to give defendant’s tenth and fifteenth requests to charge. They in effect asked the court to tell the jury what weight they should give to certain evidence.
We find no error in the record, and the order must be affirmed.