118 N.W. 233 | N.D. | 1908
Appellant was convicted of the crime of rape in the first degree, and sentenced to imprisonment in the penitentiary for the period of ten years, from which judgment he appeals.
Error is assigned upon the ruling of the trial court in denying appellant’s motion for a new trial, and also his motion in arrest of judgment. The grounds urged in the motion for a new trial were that the verdict is contrary to the evidence and against law, and the grounds urged in arrest of judgment are: “(1) The information does not state facts sufficient to constitute a public offense; (2) the information does not state facts constituting the offense of rape in the first degree; (3) If the information charges any public offense it is that of rape in the second degree.” The charging part of the information is as follows: “That at said' time and place the above-named defendant, William Clayton Rhoades, did unlawfully and feloniously, by means of force and violence, then and there overcome the resistance then and there made by-, she, the said-, being then and there a female, and not then' and there the wife of this defendant, and then and there under the above circumstances, have sexual intercourse with the said -; that at said time and place the above-named defendant, William Clayton Rhoades, did feloniously have sexual intercourse with one -, a female person, not the wife of the defendant, by then and there preventing said - from resisting, by means of threats of immediate and great bodily harm, then and there accompanied by apparent power of execution.” Appellant’s counsel expressly concede that there
The first pertinent inquiry, therefore, is whether the information sufficiently charges rape in the first degree as against an attack after verdict by motion in arrest of judgment. Section 8890, Revised Codes 1905, so far as applicable, defines rape as follows: “Rape is the act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (3) When she resists, and her resistance is overcome by force or violence. (4) When she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution.” Under section 8893, Revised Codes 1905, rape, accomplished in the manner mentioned in the third subdivision aforesaid, and also in certain other cases not material here, is rape in the first degree, and, when accomplished in the manner stated in the fourth subdivision, is rape in the second degree. By reference to said statute it will be seen that the crime of rape may be committed in several distinct ways, and among the several ways are those mentioned in subdivisions 3 and 4, namely, when the female ravished resists and her resistance is overcome by force or violence; and, when she is prevented from resisting by means of threats of immediate and great bodily harm, accompanied by apparent power of execution. The particular acts constituting the alleged rape should be set forth in the information in a manner sufficient to apprise the accused in which one of these different ways it is claimed he committed the oifense. State v. Vorey, 41 Minn. 134, 43 N. W. 324, and cases cited. Under the information in the case at bar an apparent effort was made by the pleader to charge the commission of the offense under both of the subdivisions 3 and 4, and this in one count. 'This was clearly improper, but no demurrer was interposed, nor did appellant ask that the state be required to elect upon which theory it would proceed. Hence he has waived his right to urge the objection. It follows that, if the information properly charges rape in the first degree, and the evidence of defendant’s guilt thereof is sufficient, the verdict must stand, although the information also charges rape in the second degree. -Does it sufficiently charge rape in the first degree? It is contended by appellant’s counsel that there is no allegation that the female resisted. The language’employed in the informa
This brings us to a consideration of the sufficiency of the evidence. Before reviewing the evidence, it is proper that we should briefly notice the established rules of law to be observed in considering such question. Under section 10,080, Revised Codes 1905, a new trial may be granted in criminal cases (subdivision 6) “When the verdict is * * * clearly against the evidence.” An appellate court will nor ordinarily disturb the decision of the trial judge in denying a motion for new trial, based upon alleged insufficiency of the evidence to support the verdict, and it will not do so in a criminal case, “where the record discloses evidence from which guilt of the accused can be fairly deduced,” but it will interfere where it clearly appears that the verdict has no substantial support, or is clearly without support, in the evidence. State v. Denny, 17, N. D. 519, 117 N. W. 869; Williams v. State, 61 Wis. 281, 21 N. W. 56; Lam Yee v. State, 132 Wis. 527, 112 N. W. 425; 12 Cyc. 906-908, and cases cited. The verdict, finding appellant guilty of rape in the first degree, must be supported, if at
The above statement of the rule, in so far as it is applicable to our statute defining rape, meets with our full approval; but, in view of our statute making resistance an essential element of rape in the first degree, it cannot properly be said, as was said by the Minnesota, and other courts, “that resistance by the female is an issue in a trial for rape only as it is involved in the necessary proof of her want of consent.” Our statute, so far as rape in the first
. Prosecutrix testified as follows: “Twenty-one years old last fall; came to Fargo about the 8th day of May, 1907; went to work at Hub restaurant waiting on the table; roomed with Mrs. Dunn about three months before this trouble happened. Her house was a two-story house. ;Mrs. Dunn had the upstairs or second story. There were -about three rooms on the second floor upstairs. There was a young married couple rooming upstairs besides Mrs. Dunn. They left, and Mr. Rhoades, this ’ defendant, took their place. Defendant was rooming there about a week before this trouble happened. Prior to the time this trouble took place he took me to different places of amusement; to the Bijou and Ideal. He would take me to the Bijou, and when I went home to my room, he would go with me. This trouble happened on a Sunday; don’t remember exactly the date, it was the 1st or 24th, 24th of November or the 1st of December, 1907. On that Sunday the first time that I saw Mr. Rhoades was at noon time, I waited on him. I met him that day about 2 o’clock at the Hub restaurant. He asked me if I was working that afternoon. I says no. He asked me if I would go out for a street car ride. ¡I said yes, and we went. We got back about 4:30 in the afternoon. I next saw him about 8 o’clock that evening up in the place where I roomed. I seen him in the
On cross-examination: “Q. What kind of a house was this of Mrs. Dunn’s? A. Upstairs and down stairs. Q. There was some-families directly under yours, wasn’t there, on the first floor? A. Yes. There was a stovepipe going up through my room, the room-I slept in. I think there was a family rooming right under my room. I have heard children crying down stairs. Q. You knew on this 1st day of December that there was a family rooming directly under your room? A. I knew there was some one down
Redirect examination. “Q. You testified that this defendant, some time prior to the night this trouble happened had caressed, you, or put his hands on you. Tell the jury how that happened,, what he did? A. He pulled me on his chair. I told him to let me go. He didn’t let me go. In a few minutes he did. That is the only time he caressed me.”
Recross-examination. “Q. You say he pulled you on his chair. Did he pull you on his lap? A. Yes; he pulled me on his knee.. That was before he went out to put on his night gown, and before I laid down on the bed, before I undressed. Q. And you just simply said, ‘Let me alone?’ . A. I told him to let me alone, let me go, and he did. Q. Then you got right up and left him?A. Yes; he went out of my room. He didn’t stay there at all. He was just getting ready to go, and after I told him to let me go and let me alone; he got right up and went to his room, knowing that I would not have anything to do with him, and in a short while, about 20 minutes, he undressed, and came right back into" my room. p[ told Mrs. Plunkett first about this trouble the day-after it happened. I didn’t tell anybody else, not for a long while: after. She advised me not to say a word and I didn’t.”
Without referring to the other evidence in the record tending to disprove the charge on which defendant was convicted, suffice it to say that we are clearly convinced that there was no evidence of such resistance as is essential to the crime of rape in the first degree, and hence it was error to deny the motion for a new trial.
Reversed and new trial ordered.