State v. Greco, Indictment No. 76

Indictment No. 76 | New York Court of General Session of the Peace | Mar 13, 1918

Boyce, J.,

delivering the opinion of the court:

[1-3] The indictment in this case charges that the accused did with violence assault the prosecuting witness with intent to commit rape. The element of intent is an essential ingredient of the crime charged. The particular intent with which an assault is made may be shown either by direct or circumstantial evidence; that is, by the express declarations or confession of the accused, or by his acts and conduct from which the intent may be reasonably and naturally inferred. Ordinarily evidence must be confined to the issue, so that it is a general rule that on the trial of a person for crime, proof of a distinct, independent offense, though it embraces acts of the same general kind as those surrounding the offense charged, is not admissible to establish the latter offense. This rule is subject to certain exceptions, as when it is necessary to show a particular intent for the purpose of proving guilty knowledge.

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.”

[4] There is in the case now before the court, a separation to the time of the commission of the offense charged and the Sense concerning which the witness has given testimony to the ourt in the absence of the jury. And there is not disclosed by her estimony any connection between the two offenses beyond that f proximity as to the time of their commission (three days), imilarity of means employed in making the two assaults, and the identity of the person making them. In the application of the principle of the exception invoked, the-limitation placed upon it by the court in the Effler Case is, we think, controlling in this case. We are constrained to hold that proof of a similar assault upon the witness, now before the court, is not admissible to show guilty knowledge or intent in the commission of the offense for which the accused is being tried. We decline to allow the testimony to be given to the jury.

The court directed that the jury return to the courtroom.

At the conclusion of the testimony and arguments of counsel,

Boyce, J.,

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.

[5, 6] The offense embraces not only an assault with violence, but also an intent to commit rape. It is incumbent upon the state to sustain the charge by satisfactory proof with respect to both ingredients of the crime before there can be a conviction of the accused in manner and form as he stands indicted. An assault is an unlawful attempt by force or violence to do injury to the person of another, with the present abilitjr to accomplish the attempt. (

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! of the accused, and other circumstances from which such intent may reasonably and naturally be inferred.

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.