State v. Morrison

125 P. 649 | Mont. | 1912

MR. JUSTICE SMITH

delivered the opinion of the court.

Defendant appeals from a judgment of conviction of rape, and from an order denying his motion for a new trial.

1. The information fails to charge that the female upon whom [1] the crime is alleged to have been committed was not the wife 'of the accused. It is therein alleged, however, that she bears another name than that of Morrison. As long ago as 1890, this court held, under a statute similar to that now in jjorce, that the allegation was unnecessary. (See State v. Williams, 9 Mont. 179, 23 Pac. 335.) It was proven at the trial that the prosecutrix was not the defendant’s wife. A mere rule of criminal pleading is involved — a rule which has been settled for over twenty years in this state. No injustice or hardship can result, whichever rule is adopted; and we therefore decline to overrule the case of State v. Williams, supra.

2. Section 8336, Revised Codes, declares that rape is committed: “ # * - * 3. Where [the female] resists, but her resistance is overcome by violence or force. 4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution,” etc. It is contended that the information should set forth with [2] particularity the facts constituting the offense under either paragraph 3 or paragraph 4 of the statute, supra. The information alle'ges that the defendant willfully, violently, and feloniously, and against the will and consent of the prosecutrix, feloniously ravished and carnally knew her. “When the information stated that the act was committed by force and violence, and against the will and consent of the female, it was substantially equivalent to stating that she resisted, but that her resistance was overcome by violence, or that she was prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution. Under the information as it reads, it was competent to prove that the act was committed under the circumstances provided for in either of the subdivisions” of the statute. (People v. Pacheco, 70 Cal. 473, 11 Pac. 761.) We think the foregoing is both good common sense and good law, and therefore hold the information sufficient in this regard.

3. What has just been said disposes of the contention of the appellant that the court erred in inserting in his requested instruction No. 9 the words, “or was not prevented by threats of immediate and great bodily harm, accompanied by apparent power of execution.”

4. It is contended that the evidence is insufficient to sustain a [3] judgment of conviction. We shall not quote it. Suffice to say that, in our judgment, it has substance enough to warrant a verdict of guilty, if the jury believe the tale of the prosecutrix. Different minds might form different conclusions as to its weight, force and effect; but under the jury system it was for that body to determine those questions/ The writer of this is of the opinion that, taking all the evidence in the record into consideration, the jury ought not to have believed her story to the effect that she was raped; but they did believe it, and it was their privilege and province to do so, if they saw fit.

The judgment and order are affirmed.

•Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

Rehearing denied September 10, 1912.