141 N.W. 364 | S.D. | 1913
The defendant, a married man, was convicted of assault with intent to commit rape upon a girl aged' seven years.
Assuming the evidence on behalf of the state to be true, it only showed that defendant placed his hand upon the private parts of the child and tickled her. There is an entire absence of facts indicating an intent on the part of the defendant to commit the offense charged. The intent is the gist of the offense. People v. Dowell, 136 Mich. 306, 99 N. W. 23; State v. Riseling, 186 Mo. 521, 85 S. W. 372; In re Lloyd, 51 Kan. 501, 33 Pac. 307; Hudson v. State, 49 Tex. Cr. App. 24, 90 S. W. 177; State v. Kendall, 73 Iowa, 255, 34 N. W. 843, 5 Am. St. Rep. 679; 33 Cyc. 1432, 1435. While the acts of the defendant testified to by the child were contemptible, and the defendant should be shunned by decent people, they do not indicate any intention on his part of doing more than the taking of an unwarrantable liberty with the person of the .child. We cannot understand how a fair and impartial jury could have found from the evidence an intent on his part to commit rape.
In view of the manifest lack of ability with which the defense was conducted, we deem it only fair to counsel whose name is appended to this opinion to state that he did not represent defendant at the trial.
The judgment and order denying a new trial are reversed, and a new trial is granted.
