30 Del. 140 | New York Court of General Session of the Peace | 1918
delivering the opinion of the court:
In State v. Brown, 3 Boyce, 499, 83 Atl. 797, this court, after recognizing the principle that the element of intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake,- or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain (People v. Seaman, 107 Mich. 357, 65 N. W. 203, 61 Am. St. Rep. 326), said:
“Where, however, the intent is not required to be specifically proved, or from the nature of the offense u-nder investigation proof of its commission as charged necessarily establishes the criminal intent, or the intent is a necessary conclusion from the act done, evidence of the perpetration, or attempted perpetration, of other like offenses, should not be admitted.”
In Effler v. State, 4 Boyce 62, 85 Atl. 731, the Supreme Court said:
“ * * * It appears, to prove identity, that there must be some connection between the two offenses, and it is not sufficient that they be similar offenses committed by the same person. Almost if not quite the same stringency of proof is required to prove identity of party by this Idnd of testimony as is required to show system or plan. We do not find the two offenses to be connected in such a manner as would make competent and relevant the proof of the similar offense to prove identity of the accused.”
The court directed that the jury return to the courtroom.
At the conclusion of the testimony and arguments of counsel,
charged the jury in part:
The indictment in this case charges that Peter Greco, with violence, did assault Mary Lapsley against her will with intent her to ravish and carnally know, in Wilmington hundred, this county, on the twenty-seventh day of November, 1917. The offense charged is commonly known as an assault with the intent to commit rape. Rape is defined to be the carnal knowledge of a woman, above the age of ten years, by force and against her will.
It is provided by Rev. Code 1915, § 4707, that if any person shall, with violence, assault any female with intent to commit rape, such person shall be deemed guilty of felony, etc.
If you find that the accused made an assault upon the prosecuting witness, then your inquiry will be with what intent was the assault made, was it made with the intent to commit i rape? The particular intent with which an assault is made may be proved by positive or circumstantial evidence, that is, by the declarations or confession of the accused that he committed the assault with the intent charged, or by the acts and conduct!
It is not denied that a violent assault was made upon the prosecuting witness at the time and place as laid in the indictment, but the accused denies generally that he committed the crime charged against him. He also relies upon an alibi; that is, he claims that he vras at another place at the time the offense was committed.
If you find beyond a reasonable doubt that the accused with violence, committed an assault upon Mary Lapsley, against her will, with intent her to ravish and carnally know, your verdict should be guilty in manner and form as he stands indicted.
If you find that the accused committed the alleged assault, but without intent to commit rape, your verdict should be guilty of assault. If you find that he did not commit the crime charged, or if you entertain a reasonable doubt as to his guilt, your verdict should be not guilty.
Verdict, guilty with recommendation to mercy.
Motion for new trial based on usual grounds was refused, and sentence being imposed, counsel for accused thereupon filed a praecipe for writ of error with the clerk of the Supreme Court, and a supersedeas bond, duly approved, with the clerk of the peace for New Castle county. At the following June term,1918, of the Supreme Court, on motion of the Attorney General, the writ of error was dismissed because the convict had failed to prosecute his writ of error according to law and the rules of the Supreme Court, and he was subsequently resentenced and committed by the trial court.