State v. Mahoney, 24 Mont. 281

State v. Mahoney

24 Mont. 281 | Mont. | 1900

MR. JUSTICE PIGOTT

delivered the opinion of the court.

Edward Mahoney, convicted of the crime of rape, appeals from the judgment of conviction, and an order denying his motion for a new trial.

1. The information charges that the defendant, on or about the 10th day of January, 1897, and before the filing of the information “did willfully and. unlawfully and feloniously and violently, in and upon one Nellie Corbitt, a female then and there under the age of sixteen years, to wit, of the age of fifteen years, the said Nellie Corbitt not being the wife of the said defendant, Edward Mahoney, make an assault, and her, the said Nellie Corbitt, then and there, violently and against her will, feloniously did ravish and carnally know.” As defined by section 450 of the Penal Code, “rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (1) Where the female is under the age of sixteen years * * * (3) Where she resists, but her resistance is over come by violence or force. * *” The first point argued by the defendant is that the information charges two offenses and is therefore violative of that part of section J836, of the *285Penal Code, which declares that the information must charge but one offense. The only method by which the supposed fault now urged can be taken advantage of is by a demurrer interposed under subdivision 3 of section 1922, of the Penal Code. The failure so to demur is a waiver of the objection. (Sections 1930, 2200, 2320, of the Penal Code.) Again, if the offense be single, the question of whether it should have been set forth in different forms under separate counts was not raised in the trial court, and is therefore not considered here. Any objection to the inclusion in one count of the statement of different forms of the same offense must be made in the district court, and before plea.

2. The defendant next insists that the evidence was wholly insufficient to support the verdict. After a careful reading of the transcript, we are satisfied that the evidence was sufficient to justify the verdict. One of the suggestions made by counsel for the defendant is that, since the information charges the defendant with ravishing the prosecutrix violently and against her will, it was incumbent upon the state to prove that her resistance was overcome by force or violence even if she was under the age of consent when the defendant copulated with her. Such is not the law. A woman under the age of 16 years is not in Montana capable of giving consent to sexual intercourse. Her submission or want of resistance is not, and cannot be consent. She is incapable of forming a criminal intent to commit the act, and hence, in legal contemplation, is not an accomplice to her own violation. If the prosecutrix was under the age of 16 years when the defendant carnally knew her, the defendant is guilty. Whether she submitted with or without resistance, or even solicited his embraces, is immaterial, except, perhaps, as bearing upon the extent of the punishment to be imposed, and the allegation that the act was done violently and against her will, not being descriptive may be rejected as surplusage. But, if she was sixteen years of age or over, the allegation that the act of sexual commerce was perpetrated by violence and against her will, *286(or some like averment) is essential, and must be proved. In the case at bar the evidence tending to show resistance by the prosecutrix was weak. There was, however, ample evidence showing that she was under the age of 16 at the time the defendant accomplished the act of sexual intercourse with her.

The defendant requested the court to give the following instruction: “You are further instructed that in the opinion of the court the evidence in this case is insufficient to warrant a verdict of guilty, and you are are therefore advised to render a verdict of not guilty, but this instruction is not binding upon you, and you may notwithstanding this instruction find the defendant guilty as charged.” Error is assigned upon the action of the court in refusing the request. Section 2096 of the Penal Code provides that ‘ ‘if at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury is not bound by the advice.” This section is applicable to those cases only in which the trial court deems the evidence, although tending to prove every element necessary to constitute the crime charged, insufficient in weight to warrant a conviction. _ The interpretation of this section in State v. Welch, 22 Mont. 92, 55 Pac. 927 and in State v. Fisher, 23 Mont., at page 555, 59 Pac., at page 923 is approved. There was, therefore, no error committed in refusing to instruct the jury as prayed.

3. While the defendant was confined in the jail upon the charge of rape, and while the prosecutrix, Corbitt, was also held in the same jail as a witness, the defendant secretly conveyed to the prosecutrix a letter in which he advised her to “deny everything,” and saying: “if you are taken down on Jack Rand’s case, you say nothing. * * * We will be happy together yet. The world is against us. I have got no home, and you have got none, but we will have one, and if you stay true to your promise we need not fear. Be careful not to sign anything, or say anything. Give your note to Edith. She will send it. Write on the back of this. Remember *287your promise. ’ ’ The promise made to the defendant, if the prosecutrix is to be believed, was that she would tell nothing concerning the sexual intercourse which had taken place between them. She also testified that she had seen other writings of the defendant, and that, while not willing to swear that the note was written by him, she thought it was in his handwriting. To the reception of the note or letter in evidence, the defendant objected on the ground that it was irrelevant and immaterial, and did not relate to any of the issues of the case; and further, because there was no evidence to show that it was in the defendant’s handwriting, or that he ever sent it to the witness. The grounds urged were manifestly untenable, and the note was properly admitted.

4. Many specifications of error are based upon the refusal of the court to give instructions prayed by the defendant. Most of the prayers contain comments upon the weight of the evidence, and directions or advice from the court in respect of the inferences of fact to be drawn by the j ury from the evidence; hence such requests were properly refused. The requests for instructions which were free from these vices were, in substance, given in the charge of the court.

Finding in the Record no error prejudicial to the defendant of which he complains, the judgment and the order denying a new trial are affirmed.

Affirmed.