State v. Owens

144 N.W. 439 | N.D. | 1913

Bbuce, J.

(after stating the facts as .above). Defendant seeks for a reversal on the ground that the testimony was insufficient to sustain the verdict. It is argued that the verdict rests upon the uncorroborated evidence of the prosecutrix; that she is flatly contradicted by the defendant, and that the testimony fails to show that the assault was made with intent to commit rape notwithstanding all possible resistance that should be made; and fails to show that the intent was to perpetrate the crime at all events regardless of what the prosecutrix might or could do to prevent it. It is stated that the testimony shows that the defendant was a man weighing 230 pounds at the time of the alleged offense, and that he had been a man used to and capable of lifting great weights; was a strong and powerful person; and that the prosecutrix was a married woman and the mother of children, and weighed only 130 pounds. It is claimed that the place where the acts occurred was at least one-half a mile from any residence, and the testimony shows that qo one was at hand to interpose. The testimony, in short, it is claimed, at its most and if uncontradicted, would show nothing more than persistent, continued, and vehement solicitation for voluntary sexual intercourse with the defendant.

We do not so understand the law or the evidence. It is true that the defendant weighed 230 pounds. It is also true, however, that there is evidence to the effect that he was fat, was only 5 feet 6 inches tall, and was far from being normal as to physique. There is a wide distinction between the crime of rape and the crime of an attempt to commit rape. In the crime of rape there must be proof of both the intent and the fact of overcoming all reasonable resistance. In the case of tbe crime of an attempt to commit rape there need merely be proof of tbe assault and of tbe intent to overcome resistance if made, and that tbe prosecutrix finally desisted from ber struggles and yielded does not necessarily negative tbe fact that during tbe struggles, and until tbe acquiescence, tbe defendant intended to use tbe force necessary to overcome it. Nor, if be started with, or at any time during tbe struggle bad, tbe intention to overcome sucb resistance with force, is it a defense that be became tired of bis efforts, and for this or any other reason desisted without accomplishing bis purpose or putting forth bis full strength. Whether be bad sucb an intention at any time during tbe struggle was for tbe jury to determine from tbe facts. It seems to us that tbe jury was perfectly justified in concluding from tbe evidence before them that at some time during tbe assaults tbe defendant intended to overcome all reasonable resistance. It is true that tbe evidence in this case is uncorroborated, but it appears to us to be credible and consistent throughout, and there appear to have been no errors committed by tbe court during tbe trial of tbe case. In sucb a case corroboration is not necessary. See 33 Cyc. 1512, and cases cited. State v. Rhoades, 17 N. D. 579, 594, 118 N. W. 233. It has been held, and properly, that “tbe use of force in an endeavor to have carnal knowledge of a woman tends to show an intent to commit rape, and sucb intent may exist consistently with tbe fact of a subsequent consent. A person, then, may be indicted for rape, and if the conviction for that offense is prevented by reason of evidence of tbe woman’s consent, yet if, before the consent was given, it appears that tbe defendant used sucb force as to evince an intention to commit rape, tbe defendant may be convicted of an assault with an intent to commit rape.” State v. Atherton, 50 Iowa, 1S9, 32 Am. Rep. 134; 33 Cyc. 1495; State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519; State v. Bagan, 41 Minn. 285, 43 N. W. 5. The same must, of course, be true in cases where á man makes an assault with intent to commit rape, but desists before tbe consummation of bis purpose on account of tbe struggles of the woman, tbe discovery of tbe fact that she is in tbe midst of ber period of menstruation, or on account of a sudden fear of the consequences. In tbe case of State v. De Long, 96 Iowa, 471, 65 N. W. 402, we have facts very similar to those in tbe case at- bar. In it tbe court said: “Tbe statements of Mrs. Gracey are not in all respects reasonable, and in several important particulars they conflict with ber testimony given on a former trial of the case. She made no attempt to alarm her neighbors, although one lived only 40 or 50 rods away, and another was nearer. The defendant insists that if she was alarmed at anything he said or did, she could easily have passed out of the front door to the road, where she would have been safe, and that the fact that she went into the kitchen instead is an indication that she did not desire to avoid him, but rather to encourage his advances, and that if she had resisted him, as she claims to have done, her person and clothing would have shown marks of a struggle. What a woman should do in the situation in which Mrs. Gracey was placed cannot be determined by any fixed rules. Perhaps no two women would do the same thing. With many, the desire to avoid publicity would influence their attempt to resist assault or flee from danger. The dread of being found in a situation most loathsome to every modest and virtuous woman might induce some to rely on other means to protect their virtue than public outcry. Others, stupi-fied by shame or fear, might fail to make use of the means of escape which would be most apparent and promising to a person free from excitement. What Mrs. Gracey did in this case, when alarmed, was most natural. To have gone towards the front door would have been to approach nearer to the defendant, and to have made an outcry would have been to court publicity. Moreover, she did not know that any third person was within hearing. Instead of doing these things, which, with all the facts before us, we can see would have been best for her to do, she went away from the defendant to the kitchen and toward the outside kitchen door and her husband. That she did this for the purpose of avoiding the defendant and preventing his embraces, and that he pursued her and seized her, with the intention of accomplishing his purpose notwithstanding her resistance and against her will, the jury may well have found from the evidence. . . . If the occurrences prior to the time she ascended the stairway were as she claims, and as the jury was authorized to find, the crime of which the defendant was convicted was complete, even though everything done thereafter was with the consent and according to the desires of the prosecutrix.”

“It cannot be seriously controverted,” says the supreme court of Alabama in Brown v. State, 121 Ala. 9, 25 So. 744, “that tbe evidence to sustain a conviction for an assault upon a girl with an intent forcibly to ravish her must establish the intent of the defendant to ravish beyond a reasonable doubt. That such an intent existed in the mind of the defendant at the time of an assault with force must oftentimes be gathered solely from his conduct, acts of violence perpetrated upon the female, the age of the female, previous relations existing between them if any existed, time and place of the assault, and other circumstances attendant upon the occurrence. It is seldom that a case can be found where the court can, as a matter of law, determine from the evidence that the intent to ravish did or did not exist. Where the intent rests in inference to be deduced from the facts proven, its existence or nonexistence must be submitted to the jury for their determination.” See also Lathrop v. People, 197 Ill. 169, 64 N. E. 385. In the case of State v. Page, 127 N. C. 512, 37 S. E. 66, the prosecutrix testified that the defendant opened the door of her room, where she was lying down on a pallet with her baby, and asked where her husband was. Being told that he was absent, the defendant expressed his intention to put his hands on her. She said, “No, you are not,” whereupon he started into the room, when she jumped up and ran to the back door, which was in an adjoining room, leaving her baby upon the floor. The defendant pursued her, and, as she caught hold of the knob of the back door, he caught hold of her and also put his other arm between her and the door. After a struggle, she got loose, and, opening the door, she escaped into the back yard. He did not follow her further, it seems, and, being told by her that she would tell her husband, asked her not to do so, and said he had only felt of her breast. The court, in its opinion, said: “Upon the above testimony, we cannot declare, as a matter of law, that there was no evidence of an assault ‘with felonious intent to have carnal knowledge of the person of the prosecutrix, forcibly and against her will.’ . . . The intent of the defendant is solely for the jury. The judge and jury see the bearing of the witnesses under examination and many other things incident to a trial which throw a vivid light in the investigation of the truth, but which cannot be transmitted in the cold words of a transcript sent to this court. One great advantage of a trial by jury is that they can see and hear and judge from their knowledge of bum an nature and of everyday things of life in coming to a correct conclusion upon matters wbicb are too intangible to be passed up to an appellate court in the transcript. But, at all events, the prosecu-trix testified that the defendant invaded her house, threatening to lay hands upon her, pursued her to the back door, took hold of her, and attempted to prevent her escape, and that she got loose from him only after a struggle, and the defendant confessed the truth of her statement, and added that he stopped because he feared her husband would return. In submitting the evidence of his intent to the jury, there was no error.”

Counsel, it is true, states that in the case at bar the female was an adult, and that in most of the cases cited by the state, the prosecu-trix was under the age of consent, and that in such cases an assault with intention to have intercourse would necessarily mean attempt to commit rape, whether there was an intention to overcome resistance or not. We need not here, however, decide the question whether there can be an assault with an intent to commit rape on a nonconsenting female, when she is under the age of consent, but refer merely to the cases and discussion in 33 Cyc. 1434. All we have to say is that in the following long list of cases, the woman was either an adult and above the age when failure to consent would be implied, or no age of consent had been prescribed by statute: Brown v. State, 121 Ala. 9, 25 So. 744; Smith v. State, 129 Ala. 89, 87 Am. St. Rep. 47, 29 So. 699; State v. Whitsett, 111 Mo. 202, 19 S. W. 1097; State v. Edie, 147 Mo. 535, 49 S. W. 563; Lathrop v. People, 197 Ill. 169, 64 N. E. 385; Fitzpatrick v. People, 98 Ill. 269; State v. McCune, 16 Utah, 170, 51 Pac. 818; State v. Hanlon, 62 Vt. 334, 19 Atl. 773; State v. Williams, 121 N. C. 628, 28 S. E. 405; Norris v. State, 87 Ala. 85, 6 So. 371; Farmer v. State, — Tex. Crim. Rep. —, 45 S. W. 701; People v. Kuches, 120 Cal. 566, 52 Pac. 1002; State v. Barkley, 129 Iowa, 484, 105 N. W. 506; State v. Miller, 124 Iowa, 429, 100 N. W. 334; State v. Urie, 101 Iowa, 411, 70 N. W. 603; State v. Rudd, 97 Iowa, 389, 66 N. W. 748; Bannen v. State, 115 Wis. 317, 91 N. W. 107, 965; People v. Bowman, 6 Cal. App. 149, 93 Pac. 198.

The judgment of the District Court is affirmed.