137 N.W. 37 | N.D. | 1912
(after stating the facts as above). The principal contention of appellant is that under the information and the evidence, but two forms of verdict should have been submitted to the jury; namely “guilty óf rape in the first degree,” and “not guilty.” He contends that under an information charging the accomplishment of rape in the first degree, by' force' álone, rape in the second degree, accomplished
The contention of the state, on the other hand, is that under the information a verdict of either first or second degree rape, or assault with intent to commit rape, is permissible, and lays much stress upon § 8892 of the Code, which provides that “the essential guilt of rape con
We believe that no error was committed in these matters, and that the contention of the state is correct. We are aware that there are cases to the contrary, noticeably State v. Vorey, 41 Minn. 134, 43 N. W. 324; Williams v. State, 1 Tex. App. 90, 28 Am. Rep. 399. We are also aware of the fact that there are some words used by way of dicta in the opinion of this court in the case of State v. Rhoades, 17 N. D. 580, 118 N. W. 233, which would seem to express a view which is contrary to that herein contained. The former cases, however, do not seem to be in accord with the general weight of authority, or with the logic of our statutes; and in the North Dakota case mentioned, the question was not thoroughly considered, nor was it necessary that it should have been. We have, indeed, to choose between the construction put upon statutes such as ours by the Minnesota court in the case of State v. Vorey, 41 Minn. 134, 43 N. W. 324, and the Texas court in Williams v. State, 1 Tex. App. 90, 28 Am. Rep. 399, and that of the California court in the case of People v. Snyder, 75 Cal. 325, 17 Pac. 208, and People v. Vann, 129 Cal. 119, 61 Pac. 776. We prefer to follow the rule laid down by this latter court, both because it appears logical and sensible, and because it is in accord with the general growth and history of the common law in relation to rape. “This contention,” the California court said, “is that while the information charges the crime to have been committed by force, violence, etc., the proof shows that it was committed ... by means of an an intoxicating or narcotic substance administered to the prosecuting witness by the accused, and that under § 261 of the Penal Code an information charging the crime to have been committed by force cannot be supported by proof showing it to have been committed by fraud or artifice. The common-law definition of rape was ‘the carnal knowledge of a worn-
We believe that it would have been better'practice to have charged the several specific methods of accomplishing the crime in the manner in which they are specified in the statute and under the subdivisions of the statutes; and that, if such had been done, no objection could have been made on the ground of duplicity, as the facts then charged would have constituted but a single offense, and have been but component parts or preliminary stages of committing the same offense. See 33
It also seems quite clear to us, from the authorities and from our statutes, that one charged with the commission of rape can be found guilty of assault with intent to commit rape. Nor do we see that any prejudice occurred from the refusal of the court to allow the witness to answer the question, “You were going to give him another chance?” and, “Everything was all squared between you at that time?” The witness had testified fully as to the facts, and the jury was fully competent to form its conclusions therefrom. These questions were ashed for the purpose of showing that the woman had come to believe that, after the pursuit of her over the prairie, and the indecencies committed in the earlier part of their ride, that' the defendant would desist from further persecution. The facts of the ease answer the questions in the affirmative, and it was unnecessary for the witness to go further. In fact, she, at a later period of the testimony, testified that she thought the defendant was going to be civil to her, and had practically answered the questions. Nor do we believe that any prejudicial error was occasioned by refusing to allow the complaining witness to answer the question, “Did you call Dr. Tweedle to testify in this case ?” The fact was that the doctor was not present, and the only inference that the jury could possibly draw would be that he was not called, and the circumstances of the trial answered the question for the defendant as strongly and advantageously as any verbal answer could have done.
Nor do we believe that there was any error in the charge of the court that “you are not at liberty to disbelieve as jurors, if, from the evidence, you do believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” It is claimed that this instruction allows the jury to base their belief on facts outside of the evidence, but this is not true. Appellant does not, in his brief, give the whole instruction. The whole instruction is as follows: “The jury should confine themselves to the evidence before them, and are not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible states of fact differing from that established by the evidence, nor can they go beyond the evidence to seek for doubts. You are not at liberty to disbelieve as jurors, if, from the evidence, you
Nor do we believe that any error was committed by the court in instructing the jury as to the crime of assault with intent to commit rape. It is well established, as before said, that this crime can be proved under the charge of rape, and need not be specifically alleged. The evidence is perfectly clear and uncontroverted that during the course of the ride the defendant committed numerous indecent assaults upon the prosecuting witness, and it was not improper for the court to leave it to the jury to infer the intention.
We now come to the main question, and that is as to whether there was sufficient evidence in the record on which to support the verdict, and which would justify the conviction. We believe that there was. It is not for us to pass upon the credibility of the witnesses, and as far as this appeal is concerned we can take the testimony of the complaining witness alone. Her testimony conclusively proves that during the course of the ride there were numerous indecent assaults; that she was chased over the prairie; that at one time the defendant threatened to shoot her; that there was a continuous course of persecution and solicitation, accompanied both by pursuit and indecent handling; that she was completely exhausted, and that when at the river the defendant threw her down. As before stated, we believe that the information warrants a verdict for rape in the second degree accomplished by threats of great bodily harm, and that force itself can be proved by proof merely of threats and of fear. The persecution was continuous, and, earlier in the transaction there was proof, if we believe the prosecuting witness, of a verbal threat, and all of the circumstances of the case would justify one in assuming physical threats and the overcoming of resistance both by force and fear. We are not, indeed, willing to take the position that a woman, no matter how indiscreet she may have been in the first instance in riding into the country with a man who is more or less a stranger to her, must, when assaulted in a lonely place and miles from any chance for succor or aid and when outcries would have been unavailing, and when she is at the mercy of her assailant even as
The judgment of the District Court is affirmed.