90 P. 860 | Idaho | 1907
Lead Opinion
Appellant was convicted of the crime of assault with intent to commit rape, and was sentenced to serve a term of ten years in the state penitentiary. He has
The assignments of error will be considered under four general divisions: 1. The order overruling defendant’s demurrer to the information; 2. The sufficiency or insufficiency of the evidence to support the verdict and judgment; 3. Errors alleged as having been committed in the admission and rejection of evidence offered; 4. The instructions given to the jury, and refusal to give certain instructions requested by the defendant.
The demurrer to the information was urged on the grounds that it was not charged that the assault had been made with intent to overcome the resistance of the female by means of force or fear. The charging part of the information is as follows:
“The said Prank Neil, on the 24th day of July, 1906, at the County of Bear Lake and State of Idaho, and prior to the filing of this information, in and upon one Annie Fuchs, a female, not the wife of said Frank Neil, an assault did make, and her the said Annie Fuchs did then and there violently seize, throw upon the ground, struggle with and ill-treat, with intent her, the said Annie Fuchs, willfully, feloniously, violently, unlawfully and against her will, wish, consent and resistance of her, the said Annie Fuchs, to ravish, carnally know, and with her to have actual sexual intercourse. ’ ’
From reading the foregoing it will be noted that the information charges the defendant with intent to have sexual intercourse with the prosecutrix, “willfully, feloniously, violently, unlawfully, and against her will, wish, consent and resistance.” This is an undoubted compliance with the provisions of our statutes defining the requisites of indictments and information. (Rev. Stats., secs. 7677-7679, 7686; Sess. Laws 1899, p. 126.) The case of People v. Marsh, 132 N. C. 1000, 43 S. E. 828, 67 L. R. A. 179, cited and relied upon by appellant, is not in point in this case.
We have examined the evidence very carefully, with a view of ascertaining its sufficiency to support the verdict, and
The appellant met the prosecutrix, Annie Fuchs, on July 24, 1906, at Glencoe, a lake resort in Bear Lake county, where the German people of that community were having a picnic. Appellant was engaged as a traveling salesman for a wholesale grocery firm of Chicago. He had met the prosecutrix at least once before, at a place where he sold a bill of goods. He spent part of the time during the day of this picnic in boat-riding with this girl. A dance was given that night which they all attended, and he danced several times with her. Along toward midnight the lady with whom Miss Fuchs was to spend the night got ready to go home, and while the two were discussing the matter as to whether the girl should go then or wait till later, Neil suggested that he would take her home later. After some discussion it was agreed that he should take her home when she got ready to go, and about an hour or such a matter thereafter they started. He had a team and buggy at the barn, and she says he told her that they were already hitched up (this he denies), but when they got out there she found that they were not hitched to the buggy, and he made some remark about disliking to hitch up the team, whereupon- she suggested that they walk. To this he readily agreed, and they started, the distance they were to go being somewhere between half a mile and a mile. As they started out it seems that they “locked arms” and walked along “sociable like,” and pretty soon the defendant .stopped and put both arms around her and “hugged” her, -at which she told him to “quit that,” and if he could not take her home “decent” she would go alone. He thereupon desisted from further pressing his amorous demonstrations, and they walked along for some distance without either saying anything, and he again put his arm around her and threw her to the ground and fell upon her. A scuffle ensued, in which she says she screamed and pulled his
The prosecutrix made complaint to the occupants of the hack of having been illy used, and when she got to the place where she was to stop she was crying, her hair was disheveled, her waist was pulled out about the belt and her-clothing was otherwise disarranged. She made complaint to the lady there, and shortly thereafter the defendant was arrested. He admits “hugging” the prosecutrix — says that he did so several times, and that while she told him not to-do so, he thought she liked it, and that she really meant it was all right. He admits that he tried to have intercourse-with her; but says- he had no intention of doing so by force or violence,- that he thought from her conduct that she was. a woman who would do that kind of thing, and that he was that sort of a fellow. He insists, however, that she made-practically no resistance or protest until the very last, and that he had taken such protest as she did make more as an invitation than as dissent. He denies the use of force, or any intention to resort to force or violence. He was, according to his story, rather seeking to inflame her passions and accomplish his purpose through her passive consent. He denies throwing her on the ground, and says he does not know-how she got down.
It is needless to recite the evidence in detail, because theprosecutrix was corroborated in practically the whole of her-testimony, either by the admissions of the defendant, physical facts, or the testimony of other witnesses. Her wrists, were red and showed rough handling; his face was scratched.. ■This latter fact was denied by several witnesses, but was. proven positively by one witness. He also stated to one witness that “she scratched his face and fought like the devil.”'
When the charge is assault with intent to commit the crime of rape, the intent must be judged and determined by the conduct of the party committing the assault. Here there can be no doubt but that the defendant committed both an assault and battery on the prosecutrix, not in locking arms and walking along “sociable like” with her, but in seizing her person and grappling with her and taking indecent and unwonted liberties with her. While he denies the intent to have intercourse with her against her will and resistance, still he admits that intercourse was what he was after, and that such was his 'intention, though he expected to gain his ends by securing her final consent.
When the defendant undertook such a course of conduct, he did so at his own risk, and he must now be judged not so much by what he says as by what he did — by his conduct then and there. If she had killed him under those circumstances, while he was thus pursuing his unlawful quest, it would have been justifiable homicide. If a man thus bereft of his moral instincts and the duty he owes to those whom he should protect seeks to gain an unwilling consent by arousing the passions of his victim, and thus avoid the penalties of the statutes, he will have to do so without assaulting and outraging her physical person, else his intentions will be determined by the acts he commits.
A large number of authorities are cited by counsel for appellant to the effect that the state must show in such eases that the female “showed the utmost reluctance and used the utmost resistance.” (De Voy v. State, 122 Wis. 148, 99 N. W. 455.) To our minds the trouble with a number of these authorities is that they reverse the order of the inquiry; they go about inquiring into the kind, character and nature of the fight put up by the woman, rather than the nature of the assault and evident and manifest purpose and intent of the assailant. For the purpose of reaching the conclusions announced in some of these cases it is necessary to as
In a prosecution on such a charge as this it is essential that the state prove every fact necessary to constitute rape, except penetration. What the assailant really meant to do, however, and the manner in which he meant to accomplish his purpose — whether by persuasion, force or fear — is a question of fact to be determined by the jury, and an appellate court should not disturb their finding simply because there is a conflict of evidence, but only for a failure of evidence on which to rest that finding and verdict. (23 Am. & Eng. Ency. of Law, 2d ed., 865.) It is true that she must not have consented, because if she did there would be no offense, but, on the other hand, men should not he allowed, under the protection of law, to construe every indiscreet act or word of a woman into a consent to carnal knowledge, nor should they be allowed to indulge in presumptions against the virtue and chastity of women. Rather let the evil-minded man incur the risk and hazard of misjudging the opposite sex and endeavoring to degrade them and destroy their peace and happiness. A little of this kind of law would go a long way with some of the brutes who unfortunately bear the names of men. There would be far less illicit intercourse if there were no assaults by the seducer in the first place, and the oftener he is brought to justice the less annoyance the community will suffer from the graver offenses toward which his conduct leads.
The ruling of the court in refusing to allow the defendant to tell the jury what his intention was when seeking such intimacy with the prosecutrix was clearly error, as his intent was the essential element of the offense. This error was cured by the defendant thereafter detailing the whole occurrence to the jury and stating fully his purposes and intentions. He testified that he meant to have intercourse with her if he could persuade her to consent, but that he had no intention of using force or violence on her.
This brings our consideration down to the instructions given, and the requested instructions refused by the court. The most serious complaint urged by appellant against the instructions is directed against instruction No. 2, which is as follows: “To warrant a conviction of the defendant, therefore, of the crime charged in the information, to wit, an uassault with intent to commit rape, the state must prove beyond reasonable doubt, first, that the defendant assaulted Annie Fuchs, the person named in the information, with the intent to then and there have sexual intercourse with her, the said Annie Fuchs; second, that at the time the said Annie Fuchs was a female, not the wife of the defendant; third, that such acts were committed within the county of Bear Lake, state of Idaho, at the time stated in the information, or within three years prior to the filing thereof.” The complaint made against this instruction is that it leaves out the element of force or fear. There is no question but that a conviction could not rest on a showing alone of the facts covered by
By this latter instruction the jury were clearly advised that they must find that the defendant intended to “overcome resistance which she might offer.” This was as much a part of the instructions as was instruction No. 2, and it is to be inferred that the jury considered it along with the other instructions. (People v. Bernard, 2 Idaho, 193, 10 Pac. 30; State v. Rice, 7 Idaho, 762, 66 Pac. 87; State v. Wetter, 11 Idaho, 433; State v. Bond, 12 Idaho, 424, 86 Pac. 43.) In addition to this the court told the jury by instruction No. 21 that they should consider and construe the instructions together as a whole. If the court had told the jury that they could convict the defendant as charged, by showing a simple, assault, it would have been such error as no other instruction could have cured without wholly withdrawing such erroneous instruction.
In order to warrant a conviction of the crime of assault with intent to commit rape, the state must prove beyond a reasonable doubt every essential element of rape except the final consummation of the act. It must show beyond a reasonable doubt that the defendant made an assault upon the female, with intent to use such force as was necessary in order to have sexual intercourse with her against her will and without her consent. When those facts are shown, the crime is complete and a conviction is warranted. The jury should be instructed as to all these elements of the offense. The
The defendant also particularly complains of instruction No. 8, wherein the court told the jury that “every person charged with a crime under the laws of this state is presumed to be innocent until the contrary is proven beyond a reasonable doubt, and if after a careful examination of all the evidence you should have a reasonable and abiding doubt of the defendant’s guilt, then you should acquit him.” The appellant complains of the action of the court in inserting the word “abiding.” It is true that there was no occasion for inserting this word in the instruction. It did not render the instruction any more intelligible. An examination of the many authorities will disclose that the appellate courts have never approved of the numerous attempts made by the trial courts to enlarge upon and elucidate this legal term of reasonable doubt. As a general thing, the words “reasonable doubt” are as simple and clear arid easily understood by jurors as any definitions that the courts can give. Almost all the attempts that have been made to explain and interpret “reasonable doubt” have tended more to confuse and mislead than to explain and clarify. We are not prepared to say, however, that the use of the word “abiding” was prejudicial, to the defendant. A “reasonable doubt” is certainly to some extent an “abiding” doubt. The courts have frequently approved of the instruction wherein the jury was told that “a reasonable doubt is one for which a juror can give a reason.” (People v. Dewey, 2 Idaho, 83, 6 Pac. 103; State v. Kruger, 7 Idaho, 178, 61 Pac. 463.) If such an instruction is correct, it must follow that a doubt for which a juror can give a reason is in some manner and degree an
Counsel for defendant requested the court to give fifteen separate instructions, most of which covered the question of the intent of defendant to use force and violence sufficient to overcome any and all resistance which the prosecutrix might offer. Most of these requests were a correct exposition of the law on the subject, and it would have been highly proper for the court to have given some of them, as they were perhaps rather more explicit and comprehensive statements of the law on that specific point than those given. The court had, however, on its own motion instructed the jury on this point, and correctly stated to them the law by which they should be governed. There was not such a failure to instruct on the points requested by defendant as would authorize or justify us in reversing the judgment. We do not think it out of place to observe here, however, that we consider it would be much better to give the instructions requested by defendants on any given point, where such requests correctly state the law, and by that means eliminate a great many of these controversies over requested instructions and alleged failures to instruct on specific points of the law in the case.
The appellant has also lodged a complaint against instruction No. 17 given by the court. This instruction was on the law of circumstantial evidence, and tells the jury that a. conviction may be had on such evidence. The appellant insists that there was no demand for such an instruction, and that the same was misleading to the jury, for the reason that the prosecution in no respect relied upon circumstantial evidence.
We do not think the court would be justified in reversing the judgment in this case on any of the grounds or for any of the reasons assigned by the appellant. It seems to us that the jury were justified in the conclusion they reached in this case, and we do not find any error in the rulings of the court or the giving or refusing instructions that seem to require the granting of a new trial.
Our examination of the entire record in this case, which has been very thorough and in detail, convinces us that the sentence pronounced against the defendant is too severe and entirely disproportionate to the gravity of the offense. For the most aggravated cases of this kind the statute authorizes the maximum penalty of fourteen years. Here the defendant was given a ten years’ sentence. He was a young man twenty-six years old at the time of this occurrence, while the prosecutrix was twenty-eight years old, and had been for seven years actively engaged as a professional nurse. She was of mature-years and more than ordinary experience and observation. She had never met the defendant more than once or twice before the day of this occurrence, and while her conduct was undoubtedly free from any evil purpose or intent, it was certainly indiscreet and ill-advised. It is admitted, even by the defendant himself, however, that she was a
It is both the spirit and intention of our laws that sentence shall be imposed in criminal cases for the protection of society and the reformation of the-culprit. As we view this whole case, two years’ imprisonment of the defendant will be as much protection to society and do him as much good as would ten. Ten years would practically ruin him for life. He is a young man yet, and it is to be hoped that this experience will serve to reshape and reconstruct his views regarding his duties and obligations to those about him, and possibly inspire him with some higher and better notions than those only of gratifying his lust and sensual passions. We have concluded to modify the sentence to the extent of reducing it to a term of two years in the state penitentiary.
The cause is remanded, with directions to the trial court to resentenee the defendant to imprisonment in the state penitentiary for the term of two years.
Rehearing
ON PETITION FOR REHEARING.
This is a petition for rehearing. Under the provisions of section 8076, Revised Statutes, when the judgment of the appellate court is rendered iü a criminal ease, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the court from which the appeal was taken. It would seem clear from the provisions of that section that the appellate court does not retain jurisdiction in criminal cases after the judgment
It is urged in the petition that the court misapprehended the facts in the ease; that in the original opinion the court assumed that the prosecutrix went boat-riding with the appellant, when according to the evidence she went with Macbeth. It is admitted in the petition that the statement in the transcript leaves it somewhat ambiguous, at first impression, as to which person went boat-riding with the prosecutrix. It is clear, at any rate, that she went boat-riding with Macbeth. The defendant testified that his arms were lame from rowing the boat, but conceding that the defendant did not take the prosecutrix boat-riding, it makes no difference; the evidence is amply sufficient to' sustain the verdict of the jury.
As to whether there were scratches upon the defendant’s face, there is a conflict in the evidence, and the jury, no doubt, passed upon that question. As to whether the parties locked arms, the defendant testified that he took hold of the prosecutrix’s arm, and they went outside and walked over to the bam where the mules were standing. The evidence also shows that they had their arms partly around each other.
We have gone carefully through the petition for rehearing upon the other points suggested, and are satisfied that if this court has power to "grant a rehearing, the showing is not sufficient in this case, and the petition for a rehearing must be denied.