37 P.2d 821 | Nev. | 1935
Lead Opinion
The case at bar seems to be one of first impression in the State of Nevada, and there are no decisions of the Nevada supreme court in point. However, the question of whether the conviction of assault and battery is a bar to the subsequent prosecution of attempted rape, based upon the same transaction, has been passed upon in other states and by the supreme court of the United States. 8 R.C.L. 146, sec. 131; 7 Cal. Juris. 959, sec. 100; People v. McDaniels (Cal.)
To be found guilty of the crime of attempt to commit a crime, two elements must be pleaded and proven: first, the intent to commit a crime; second, a direct act done toward its commission, and tending, but failing to accomplish it. State v. Dawson,
The matter before this court is one wherein the information specifically sets forth the fact that the overt act consisted of an assault upon the complaining witness; the further fact that the complaining witness did not consent to the acts complained of. Therefore, before the charge of attempted rape can be sustained, *469
the state must prove the assault, and this assault was the same transaction which resulted in appellant's conviction in the justice's court of assault and battery. For in the absence of the complaining witness' consent, the mere intention to commit rape does not constitute a crime without the positive assault tending toward the accomplishment of the crime.
We argue that where an attempt is charged, a completed offense of a lesser degree cannot be included therein. Furthermore, we argue that the offenses are not identical. The statutes specifically define assault and battery as a misdemeanor, and fixes the penalty; they also define attempted rape, and fix a different penalty. The latter offense is a felony. The justice's court, which had jurisdiction over the misdemeanor, had no jurisdiction over the felony. 16 C.J. p. 239; Brown v. State,
The legal proposition that the same act or group of acts may constitute two or more distinct offenses, different in kind as well as degree, is supported in the cases of State v. Jellison (Me.),
"That the said defendant on the 8th day of May, A.D. 1934, or thereabout, and before the filing of this information, at and within the County of Washoe, State of Nevada, did, then and there, being then and there a male person over the age of sixteen years, to wit, of the age of about forty-nine years, willfully, unlawfully and feloniously, attempt to carnally know the person of one, Alice Tillman, a female child under the age of eighteen years, to wit, of the age of fifteen years, by inducing the said Alice Tillman to go into his dwelling house at No. 3 Seventeenth Street, City of Sparks, Washoe County, Nevada, and by locking her in said dwelling house and forcibly and violently throwing and struggling with her upon a bed therein and by pursuing her from said dwelling house and forcibly restraining and struggling with her on the ground in the yard of said premises and endeavoring, but failing so to do, at said places, to have sexual intercourse with her, the said Alice Tillman, all with the felonious intent then and there to rape her, the said Alice Tillman."
Upon arraignment, in addition to the plea of "Not Guilty," pleas of former conviction and jeopardy for the offense charged were entered without objection on the part of the state. Upon the trial, and when the state rested its case, the defendant, in support of his special pleas, offered in evidence the record of the proceedings in the justice's court of Sparks Township, Washoe County, Nevada, entitled "The State Vs. Andy Holm," from which it appears that on the 9th day of May, 1934, the defendant was arrested upon a warrant issued out of said court charging him with the crime of assault and battery on the person of Alice Tillman, *471 and on that day was committed to imprisonment in the county jail of Washoe County for the period of 180 days. In support of his plea of former jeopardy, the defendant offered evidence to show that the charge of assault and battery in the justice's court was predicated upon the same criminal transaction described in the information in the district court. The proffered evidence was rejected, and the case was submitted to the jury upon the plea of not guilty only. The defendant was found guilty of the offense charged in the information, whereupon he was sentenced to state's prison for the period of not less than 5 nor more than 20 years, where he is now confined. The defendant appeals from the judgment and from an order denying a new trial.
The issues raised by the defendant's special pleas were for the jury, subject, of course, to the right of the court to decide upon the competency and relevancy of the evidence offered in support of the pleas. State v. Johnson,
Counsel directs our attention to section 10911 N.C.L., which provides as follows: "When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information."
The statute seems to contemplate that, for a plea of former conviction or jeopardy to be available as a defense or bar to a subsequent prosecution, it is necessary for the accused to have been proceeded against by indictment or information in a court of competent jurisdiction. If, as argued on behalf of the accused, the assault and battery charged in the justice's court was an offense necessarily included in the information in the district court, the justice's court was clearly without jurisdiction of the offense. I am in accord with the ruling of the trial court that the proffered evidence in support of the defendant's pleas was insufficient as a matter of law to constitute a defense or bar to the prosecution of the defendant for an attempt to commit statutory rape.
The judgment and order denying the motion for new trial should be affirmed.
Concurrence Opinion
I concur in the order of affirmance. The question for determination is whether, under appellant's pleas of *473 former conviction and once in jeopardy to the information in the district court, he was entitled to prove that he had been adjudged guilty of assault and battery in the justice's court.
It is conceded that the facts of the case in the justice's court are the same facts on which he was convicted in the district court. In the oral argument before us and in their briefs, opposing counsel presented and discussed two classes of cases, one of which, People v. McDaniels,
I think, however, that the particular facts of this case take it out of the doctrine of either class of cases mentioned.
The appellant is charged in the information with the crime of attempted rape alleged to have been committed upon a female of the age of 15 years.
It is clear that the accused was never in jeopardy in the justice's court as to the crime of attempted rape. He was not charged with the felony in that court, and the court would have no jurisdiction if he had been charged with it. Consequently, on his trial on the information, he had not been once in jeopardy for the crime of attempted rape, nor was he then in jeopardy for the offense of assault and battery, unless it is necessarily included in the offense charged. If it is not so included, a verdict of guilty of assault and battery would not have been responsive to the issues raised by the information, and therefore void. Section 11017 N.C.L., reads: "In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged, or may be found guilty of an attempt to commit the offense charged."
The converse of this statutory rule is true.
As previously stated, the crime charged is attempted *474 rape of a female of the age of 15 years. The jury found the accused guilty as charged. Upon their verdict, the trial court adjudged him guilty of the crime of attempted rape, and pronounced sentence accordingly.
"Any person of the age of sixteen years or upwards who shall have carnal knowledge of any female child under the age of eighteen years, either with or without her consent, shall be adjudged guilty of the crime of rape. * * *" Section 10124 N.C.L.
This being the law, the appellant could have been convicted of the offense charged, to wit, attempted rape, even though the female, who was under the age of 18 years, consented to everything that was done. In that event there would have been no assault, for, as held in State v. Pickett,
It is obvious, therefore, that the appellant could not have been in jeopardy upon any state of facts the evidence might disclose, for, if the female did not consent, there is no charge of an assault. Jeopardy cannot attach, in the absence of a valid charge. Ex parte Maxwell,
I have therefore joined in affirming the judgment.
Dissenting Opinion
I dissent on the theory that the crime of assault and battery is included in the offense charged in the information in this case. I think the case of People v. McDaniels,
