157 Minn. 408 | Minn. | 1923
Appellant was indicted on a charge of carnally knowing and abusing a female child under the age of 14. On the trial the county attorney announced that the state would endeavor to prove only an attempt to commit the offense alleged in the indictment.
The case was tried upon that theory, and, under the instructions of the court, the jury was required to convict the appellant of such attempt or to acquit him.
Appellant was convicted, and, from an order denying a motion for a new trial, he has appealed to this court.
The principal questions which appellant brings to this court are: (1) Should the court have permitted the jury to consider
assault in the third degree? and (2) Does the evidence show, beyond a reasonable doubt, that the accused was guilty of the crime of which he was convicted?
Should the trial court have submitted to the jury, as within their province, the question as to whether the accused might have been found guilty of simple assault?
The accused was indicted under section 8656, G. S. 1913. He was tried for the crime of attempting to commit the offense charged. Section 8476, G. S. 1913.
The defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment. Section 9213, G. S. 1913.
Tbis court has held that an accused cannot predicate error upon tbe failure to charge as to a lesser offense when be has not requested such charge. State v. Gaularpp, 144 Minn. 86, 174 N. W. 445. In tbe instant case, no formal request was made for a charge covering indecent assault, or simple assault, but, when tbe state rested, counsel for tbe accused brought up tbis question and called tbe attention of tbe court to an instruction in reference to indecent assault and also to an instruction in reference to simple assault. Tbis came up in connection with a motion to take from tbe jury tbe consideration of tbe attempt to commit tbe crime charged. Apparently tbis was before tbe court, though not in good form, and tbe motion was denied, to which an exception was taken. Tbis seems sufficient to require tbis court to give consideration to tbe assignment of error now made which relates only to tbe charge as to simple assault but, in view of tbe necessity of another trial, we will discuss both lesser offenses.
Whether or not it may be possible to commit tbe crime of an attempt to carnally know and abuse a female child, without committing assault, has heretofore been referred to by tbis court, but not decided. State v. Christofferson, 149 Minn. 134, 182 N. W. 961. We think that an assault, whether it be indecent or simple, is an essential and necessary element of tbe offense of attempting to commit such a crime. An act done with intent to commit a crime, and tending, but failing, to accomplish it, is an attempt to commit that crime. Section 8490, G. S. 1913. It seems apparent that any act having such tendency must necessarily embrace tbe element of assault. Tbe evidence in tbis case was such that tbe jury should have been permitted to consider these lesser offenses.
Appellant is granted a new trial.