56 Kan. 238 | Kan. | 1895
The opinion of the court was delivered by
: Arthur S. Kendall was convicted of assault with intent to commit rape upon the person of Emma Cathcart, who was under the age of 18 years.
It is contended that some portions of the charge were inappropriate and erroneous, and from the language used by the court it is claimed that there could have been no evidence to sustain the charge of an attempt to commit a rape. The evidence in the case was not preserved, and we have no means of knowing what it was, nor whether it justified the instructions that were given. The claims of the prosecutrix and of the defendant in respect to the matter are stated in the instructions, but whether their testimony accorded with their claims does not appear. In the absence of the evidence we must assume that it was sufficient to sustain the verdict of the jury, and that it warranted the giving of an instruction as to what' would constitute an attempt to commit rape, as well as one in regard to the completed sexual act. It is argued that the one given concerning an attempt must be held to be incorrect in any case. The court instructed, that
“The charge in the information in this case not only includes a charge of rape upon the said Emma*241 Cat-heart, but it also includes the charge of assault with intent to commit rape upon her, and although you should have a reasonable doubt as to whether the defendant actually committed a rape upon her, yet if you believe from the evidence, beyond a reasonable doubt, that he made an assault upon her with the intent to commit a rape — that is, that he caught hold of her and used force or violence and threats, with the intent to carnally know her, then and in that case you should find him guilty of an assault with intent to commit a rape, and in that case it would make no difference that he might have failed to accomplish his purpose.”
A fuller definition as to what would constitute an assault with intent to commit a rape might have been given, but no such instruction was requested, and the defendant has no ground to complain of the on® given. It is argued that in all such cases there must be present not only the intent to commit the offense, but some act toward its commission. If the defendant caught hold of the prosecutrix with intent to carnally know her, and used force or violence, together with threats, for the purpose of obtaining sexual intercourse with her, it cannot be said that there were no overt acts toward the commission of rape, and further, that the attempt had not progressed sufficiently toward execution to show the criminal intent of the defendant. The prosecutrix being under 18 years of age, and under the law deemed incapable of giving consent, the rule insisted upon- by the defendant with respect to consent, force and resistance is inapplicable.
In one of the instructions some strong language is used by the court in characterizing the offense of rape, and of this complaint is made. The language, however, is mainly the same as is used in one requested by the defendant-, and while it might well
We find nothing in the record that warrants a reversal, and therefore the judgment of the district court will be affirmed.