State v. Comeaux

77 So. 489 | La. | 1918

PROVOSTY, J.

[1] The indictment in this case reads:

“That one Alcide Comeaux, at the parish aforesaid, on or about the 1st day of May, A. D. 1917, did unlawfully, willfully, and feloniously make an assault upon one Mabel Besard, a female, with the intent in so doing, then and there, unlawfully, feloniously, forcibly, and against the will and consent of the said Mabel Besard, to ravish and carnally know.”

This indictment is fatally defective in that it does not charge with certainty whom it was the accused intended to ravish and carnally know. Very true, it gives rise to a strong inference that Mabel Besard was the person; but indictments are not taken by intendment ; they must be positive and certain.

[2] If, when the next trial is had, the witness Mabel Besard is still under 10 years of age, the accused will be entitled to have her examined on voir dire as to her competency before she is sworn to testify. State v. Frazier, 109 La. 458, 33 South. 561; State v. Downs, 50 Da. Ann. 694, 23 South. 456; Whart. Crim. Ev. (10th Ed.) vol. 1, § 447.

[3] The defense being that the accused was so drunk as not to be capable of entertaining any specific intent, and that therefore if any assault at all was committed it was not with the intent alleged in the indictment, the judge was requested to charge that upon an indictment for assault with intent to commit a rape a verdict may be found for simple assault.

[4] The charge should have been given. Where a specific intent constitutes one of the elements of the crime charged in the indictment, and for any reason that intent is absent or not proved, there must necessarily be an acquittal as to that crime. And drunkenness so complete as to exclude the possibility of the existence of any specific intent may necessarily serve to show the absence of such intent. 12 Cyc. 172; Wharton, Crim. L. vol. 1, § 68, p. 93 et seq.

[5] A lesser crime may be included in a greater. In such a case a conviction for the lesser may be had upon an indictment for the greater. State v. Fruge, 106 La. 695, 31 South. 323; State v. Matthews, 111 La. 962, 36 South. 48. On an indictment for rape, a verdict for assault may be found. Wharton (11th Ed.) vol. 1, § 746, p. 946.' Where defendant, may be found guilty of any offense necessarily included within the crime •charged, it is error, on his request, to refuse to so instruct the jury.. 12 Cyc. 39. This is true, however, only when there is evidence upon which a verdict for the lesser crime may be found. State v. Kemp, 120 La. 378, 45 South. 283. There was such evidence in this case, since there was evidence of accused having been very drunk, and the question was simply as to whether the drunkenness was so complete as to exclude intent.

The judgment is set aside and the indictment is quashed.