194 Iowa 1032 | Iowa | 1922
Lead Opinion
1. The evidence is of such.a character that, in the interests of decency, the details ought not to be stated. We shall attempt to cover the main points without stating the nauseating details. There is no conflict in the evidence. No evidence was offered on behalf of the defendant.
The prosecuting witness was 14 years of age, at the time
The burden of appellant’s contention has to do with certain instructions given by the trial court, and the sufficiency of the evidence to sustain the verdict. The prosecutrix, being under 15 years of age, could not, under our statute, consent to an assault with intent to commit rape. The trial court properly submitted to the jury, for its determination, the question of the guilt or innocence of the defendant only as to the charge in the indictment, to wit, an assault with intent to commit rape. Both noneonsent and force are essential ingredients of rape of a woman over the1 age of consent. Mere carnal knowledge of a girl under the age of consent is rape. It may be with or without her consent, and with or without the use of force; and if an indictment alleges force, in such a case, the allegation is mere surplusage. State v. Anderson, 125 Iowa 501. To sustain' a charge of assault with intent to commit rape, the testimony must show that tire act or acts of the accused constitute an assault, or that the act or acts of the accused, if done with the consent of the female, were acts to which she was, under the law, incapable of giving her consent. An assault necessarily includes an attempt. The ordinary definition of assault is that there must be an unlawful attempt or offer to apply force to another, with intent to do physical injury, and the present means to give it effect. State v. Lewis, 173 Iowa 643; State v. Jerome, 82 Iowa 749. All attempts to do physical violence are unlawful, unless permitted by law, and a person is not permitted by law to consent to unlawful assault. The individual cannot license crime, and the law violator cannot justify his criminal acts by
For the purposes of this case, it may be conceded that the offense described in the section of the Code last mentioned is a distinct offense, and not included in the offense charged in this case. The trial court so treated the matter, and did not instruct that the offense under the Code section just mentioned was included in assault with intent to rape. ¥e think Section 4938-a has no bearing. The mere fact that the same act may constitute two different crimes is not controlling. Such a situation often occurs. The first contention is doubtless true, in the sense that, with a child even under 15, consenting to a simple assault, or an assault and battery, by a touching of the person, the defendant’ could not be convicted, under the indictment herein, as. an included offense, of either simple assault or assault and battery. We are very clear, however, that an assault, or a touching of the person, coupled with the intent to have sexual connection, is an entirely different matter. The trial court gave the following instructions, among others:
“5. It is provided by the laws of this state that, if any person carnally know and abuse any female child under the age
“6. To constitute the crime of assault with intent to commit rape, the intent with which the assault is made is the gist or essence of the offense, and must be proven. The intention with which an assault is made is an act or emotion of the mind which prompts the act, and which is often incapable of direct or positive proof, but is to be arrived at or determined by such just or reasonable deductions or inferences from the acts and facts proven as the guarded judgment of a candid and cautious
“9. The allegations of the indictment in this case include three crimes 6f different degrees of enormity: 1. The crime of assault with intent to commit rape, which is the highest degree of crime included within the allegations of the indictment; 2. the crime of assault and battery, a lower offense; 3. the crime of assault, the lowest offense. However, under the evidence in this case, the court submits to the jury, for its determination, the question of the guilt or innocence of the defendant only as to the charge made in the indictment: that is, of an assault with intent to commit rape. The testimony of the prosecuting witness is, in substance and to the effect,- that the acts committed by the defendant, if any, complained of, were with her consent. As she is shown by the evidence to have been, at the timé, more than 13 years of age, the defendant cannot, in this action, be found guilty of either an assault and battery or of a simple assault, nor can the defendant be found guilty, in this case, of the crime charged in the indictment, — that is, the crime of assault with intent to commit a rape upon the prosecuting witness, Joy Jeffries, — unless you shall find from the evidence in this case, beyond a reasonable doubt, that he made an assault upon the prosecuting witness and that in doing what he did on
“11. The intent is the gist of the offense, in a case of this character, and unless you are satisfied beyond a reasonable doubt that the defendant intended, at the particular time complained of, to wit, July 17, 1919, and indicated by the prosecuting witness, to have sexual connection with the prosecuting witness, then and there, you must acquit the defendant of the crime charged in the indictment. Any intent short of that, as toying’, loving, feeling, or dallying with the prosecuting witness, however reprehensible in itself, would not be sufficient to constitute the offense charged in the indictment.
“12. The defendant is presumed to be innocent of the charge made against him, and even though you may find from the evidence that he may have had the desire, and also the opportunity, to have sexual intercourse with the prosecutrix, such fact alone will not overcome the presumption of innocence. Before the defendant can be convicted of the crime charged in this ease, it is incumbent upon the State to establish by the evidence, beyond a reasonable doubt, not only that defendant had such desire and such opportunity to have such intercourse with said prosecutrix, but also must further establish by the evidence, beyond a reasonable doubt, that, at the time and place, and by the acts complained of, the defendant made an assault upon said prosecutrix, with the intent then and there to have such sexual intercourse with said prosecutrix.”
The court also gave an instruction in regard to the neces
We are of opinion that the instructions very clearly and correctly state the law, as applicable to the facts in this case, in regard to the point now under consideration. The trial court properly instructed the jury that defendant couM not be convicted of the crimes usually in-eluded in such a charge as this, — of simple assault or assault and battery, — because the prosecuting witness consented, and could legally consent, to the touching of her person. Touching the person or caressing or fondling with intent to have intercourse is an entirely different proposition. It is thought by appellant that, by instruction on assault and assault and battery, there is a. contradiction in the instructions on that subject and the instructions in regard to assault with intent to commit rape. But the instructions did not authorize a conviction for the lower degree. The instructions on simple assault and assault and battery merely defined such offenses, and were merely introductory and preliminary to the explanation in later instructions why, because of the consent of prosecutrix thereto, defendant could not be convicted of such lower degrees of what would, ordinarily be included in an assault of a higher degree. Prosecutrix could not consent to the crime charged. State v. Sherman, 106 Iowa 684; State v. Grossheim, 79 Iowa 75. It may be conceded that the intent alone does not constitute a crime, and that there must be some overt act. As said, an assault is an attempt. The contention of appellant disregards the word “with,” and entirely separates the touching of the person of prosecutrix, which, under some circumstances, might be an assault, or an assault and battery, from the intent with which the act of touching was done. The word “with” may mean “in addition to,” “as incident thereto,” “at the same time,” “together with,” etc. 40 Cyc. 2123. If the touching or handling of the person of prosecutrix was with the intention of having-sexual intercourse, he was guilty of assault with intent to commit rape, .even though she did, in fact, consent to the assault, or to the assault with intent to rape. Under the statute; she
“If you find from the evidence that the defendant, at the time and place in question, asked or caused the said Minnie Blood to lie down upon the ground and disarrange * * * her clothing, for the purpose of having sexual intercourse with her, that would constitute an assault; and if, in addition to such facts, you further find that it was the defendant’s intention, in so doing, to carnally know her, and you further find that the said Minnie Blood, at the time, was under the age of 13 years [now 15], and nothing further be shown, then the defendant is guilty of an assault with intent to commit rape, and should be convicted accordingly. ’ ’
Of this instruction, this court said:
“Nothing but actual sexual intercourse was necessary to follow the acts described as an assault, to constitute rape upon a female of that age. If so, and if the acts specified were done with intent to have such intercourse, then the conclusion must follow that it was an assault with intent to commit rape. ’ ’
So it is in the instant case. Here, nothing was lacking to constitute the completed offense of rape, except some penetration. Had there been penetration, it would have been rape, even though prosecutrix had consented to it, and to every step leading up to the consummated act. In such case, it is wholly immaterial that some of the preliminary steps were consented to. She could not consent to the touching or fondling of her person coupled with the intention to have intercourse, — something which, under the statute, she could not’ legally consent to. There can be no doubt, and the evidence abundantly shows, and the jury could have so found, that, in all probability, defendant would have had intercourse at that time, but for the
“The [overt] act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. * * * While it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. Whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt; and the courts should not destroy the practical and commonsense administration of the law with subtleties as to what constitutes preparation and what an act done towards the commission of a crime. It would be useless to attempt to lay down any rule by which an act might be characterized as overt or otherwise in a particular ease, and the general principles * * * must be applied in each case, as nearly as can be, with a view to working substantial justice.”
The foregoing propositions, with the citation of numerous authorities, will be found in 8 Ruling Case Law 279. Cromeans v. State, 59 Tex. Or. 611 (129 S. W. 1129), and some other similar cases are relied upon to sustain the contention of appellant that there was no attempt, no overt acts, and no assault with intent to commit rape. The Cromeans case is not in point. In the course of that opinion, the court says that there has been such contrariety of opinion among the judges of the court as to whether or not an assault upon a girl 15 years old, with her eon-
“We think more than mere detention, more than a decent laying on of the hands, some approach, at least, towards preparation for the ultimate act, something showing with reasonable certainty that intercourse is the immediate design to be now effected, as the outcome of an act now begun.”
These last mentioned matters .were done in the instant case. The jury were justified in finding that it was defendant’s purpose and intention to have intercourse with the prosecutrix at the time in question, and that there was more than mere solicitation to have intercourse at some future time. One step further, and the completed offense of rape would have been done. Assault with intent to commit rape may be committed on a child under the age of consent, and intent may be inferred from all the facts' and circumstances. State v. Newton, 44 Iowa 45. "When nothing but actual intercourse is necessary to follow the acts described as an assault to constitute rape upon a female under the age of consent, and if the acts were done with intent to have such intercourse, the crime is assault with intent to com-' mit rape. State v. Sherman, supra; State v. Grossheim, supra; State v. Johnson, 133 Iowa 38. See, also, State v. Berry, 192 Iowa 191; State v. Fujita, 20 N. D. 555 (129 N. W. 360); Croomes v. State, 40 Tex. Cr. Rep. 672 (51 S. W. 924) Hanes v. State, 155 Ind. 112 (57 N. E. 704); 2 Ruling Case Law 457;
“If, under the law, a female under 12 years of age is incapable of giving her consent to the act of sexual intercourse, then she is equally incapable of consenting to all familiarity with her person that necessarily precedes the consummation of the act.”
This might not be so under our statute before referred to, as to mere lascivious acts, without the intention of having sexual intercourse. See, also, 22 Corpus Juris 103, where many references are made to matters which will be presumed, and the sense in which the words “presumption” and “inference” are used. It is not necessary that the child make any resistance. State v. Carnagy, 106 Iowa 483. The foregoing disposes of the principal argument advanced.
2. Complaint is made of the alleged misconduct of the county attorney in the closing argument to the jury. We do not approve of the language used, and a majority of the court specifically disapprove.it. For myself, I do not think there is reversible error in it. Counsel for appellant evidently did -not consider this matter of sufficient importance to embody it in the abstract. It appears that the closing argument of the county attorney was taken down by the court reporter. This is, for the first time, set up in appellant’s amendment to abstract. Much of the closing argument of the county attorney is taken up in answering arguments of counsel for appellant. It so shows on its face. No affidavits were filed and no showing made by appellant or his counsel that the statements the county attorney says he was answering were not made. No objections were made to the remarks now complained of, and no exceptions thereto, except as they are referred to in the motion for new trial. From the argument of the county attorney, it appears that counsel for appellant, in theii argument, gave numerous experiences of their own in the trial of other eases, which were outside the record. Coun-. sel for appellant first referred to the matter of mob law, and the county attorney’s argument which is complained of has reference to that subject. The statement, as I think, seems to have
‘ ‘ The rule is that mere misconduct of counsel is not enough alone to require the granting of a new trial, unless it appears to have been so prejudicial as to deprive the complaining party of a fair hearing of his case by the jury on the evidence. The trial court having heard all that took place on the trial, we ought not to interfere with his discretion in refusing a new trial” (citing State v. Thomas, 135 Iowa 717; State v. Waterbury, 133 Iowa 135; State v. Norman, 135 Iowa 483; State v. Wilson, 157 Iowa 698). See, also, State v. Burns, 119 Iowa 663, and State v. Drake, 128 Iowa 539, where the limits of argument are well defined. We have held that, where defendant makes no complaint at the time as to improper remarks of counsel, and asks no direction to the jury for the purpose of removing prejudice arising therefrom, he cannot afterwards complain. State v. Hogan, 115 Iowa 455; State v. Busse, 127 Iowa 318. In the last named case, it was held improper for the prosecuting attorney to suggest to the jury the possibility of a lynching, in case they should acquit. That is not the situation here, nor the statement made by the prosecutor. As I view it, the statement in the instant case was not as strong or as prejudicial as in the B.usse case. The prosecutor simply gave his opinion that, if the father of prosecutrix had been living, it might have been disastrous to the defendant. While, as said, the language is not to be approved, yet, under all the circumstances, I think there was no prejudice shown. We said, in State v. Sale, 119 Iowa 1, that improper argument cannot first be made the ground of objection on motion for new trial, but should be called to the at
3. Instruction No. 6 is complained of, and particularly one clause in the middle of it, to the effect that the natural and probable consequences of every act deliberately done by a person of sound mind are presumed to be intended by the author of such act; and that the law warrants .the presumption or inference that a person intends the results or consequences to follow an act which he intentionally commits, which ordinarily do follow such act; and that such presumption may be overcome by the proof. A majority of the court are of opinion that the instruction is erroneous, and that the cáse must be reversed because of the error. The writer is of opinion—and in this Mr. Justice Weaver concurs—that there is no prejudice at this point. The majority argue and hold that the language just referred to is a rule of. evidence bottomed on the fact that there is a resulting consequence of the act charged; that there was no result or consequence following any act of the defendant’s which the court
“The law warrants the presumption or inference that a person intends the results or consequences to follow an act which ordinarily do follow such act. ’ ’
In Mitchell v. Phillips Min. Co., 181 Iowa 600, at 604, we pointed out that there are countless definitions for the word “presumption,” and that frequently the word so used is the wrong word, and that “presumption, assumption, and inference” are indiscriminately made use of. Some authorities make a distinction between “presumption” and “inference,” and say that inference is a reasoning or logical process involving deduction or induction. . Reading all of Instruction No.- 6 together, it seems to me that this is the meaning of the court, conveyed in the use of the words “presumption or inference;” and that the jurors, not being lawyers, would not be able to discriminate, and to give the word “presumption” one of the countless meanings attributed to the words by the holding of the majority members of the court. . The jury would not be able to distinguish or apply
“If you find the alleged assault was made, as charged, then has the intent been sufficiently proven. The intent must be established from the evidence, but it may be inferred from the facts and circumstances. If the evidence establish the facts which usually accompany and precede the crime of rape when fully consummated, then, if such facts and circumstances have not been explained, and the assault is made out, it is fair to presume that the assault was accompanied by the intent.”
The instruction then recites the circumstances which may be considered by the jury in determining the intent.
Instruction No. 6, now under consideration, seems to be in harmony with the instruction given in the Newton case. It should be said, however, that the precise point now raised was not there raised or considered. In State v. Sherman, supra, the instruction given by the trial court, and approved on appeal, after referring to preliminary and overt acts and to the age of prosecutrix, recites that:
“If, in addition to such facts, you further find that it was the defendant’s intention, in so doing, to carnally know her, * * * and nothing further be shown [nothing rebutting], then the defendant is guilty of an assault with intent to commit rape, and should be convicted accordingly. ’ ’
Instruction No. 6, taken as a whole, clearly leaves it to the jury to determine whether defendant, in doing the things he did do, had the intention of carnally knowing prosecutrix. The facts in the Sherman case and in the instant case are quite similar. In the Sherman case, the jury was told pointedly that, if the jury found the matters stated to be true, defendant was guilty. In the instant ease, the instruction does not say that defendant is guilty, but that the jury may presume or infer
Other questions are argued: for instance, tbe question of corroboration, and tbe alleged lack of complaints by the prose-cutrix, and so on. It is also thought that tbe court did not, by its instructions, refer to tbe precise time of tbe transaction in question. It is true, tbe court did not use tbe words “then and there, ’ ’ in referring to tbe intent, etc.; but in several places in tbe instructions, tbe court used tbe language, “on tbe occasion complained of.” Others refer to tbe date, July 17, 1919. We think the point was fully covered. There was evidence of complaints, and the corroboration is amply sufficient. Tbe points noticed are controlling. All points have been considered;
I would affirm on all points; but, as said, a majority favor a reversal on tbe ground stated. The cause is reversed and remanded for further proceedings in harmony with tbe opinion.- — ■ Reversed and remanded.
Concurrence Opinion
(specially concurring). I concur in tbe reversal of the judgment in this cause, but in tbe opinion of the
The prosecutrix was slightly under the age of 15 years. Under our statute she could not consent to an unlawful assault nor could she consent to the consummated act or to any essential criminal part of it. On this proposition we are all agreed. No issue was submitted to the jury for determination except the guilt or innocence of the defendant as to the charge in the indictment, to wit: assault with intent to commit rape. This was a correct instruction, if the evidence warranted a submission of the case to the jury. State v. Sherman, 106 Iowa 684; State v. Johnson 133 Iowa 38; State v. Herrington, 147 Iowa 636.
In one instruction it is said that the act of the defendant in laying hands upon the prosecuting witness, “in any manner whatever constitutes an assault or an assault and battery within the meaning of the law of this state, so far as the charge of assault in this case is concerned,” and if the defendant did so with intent to have sexual intercourse with her he would be guilty of the crime of assault with intent to commit rape.
Is this statement of the law to the jury correct? -It is not sufficient to construe instructions as mere abstract propositions of law. They must be viewed with reference to the facts and to the issues in the case, and only as'thus limited or explained has the pronouncement of law in opinion any value. Instructions must be written and read in the light of the evidence in the case. In considering the complaint lodged against the foregoing instruction it .is necessary that the case is predicated on correct legal definition.
Both nonconsent and force are essential ingredients in rape of a woman over the age of consent. Mere carnal knowledge of a girl under the age of consent is rape. It may be with or without her consent and with or without the use of force, and if an indictment alleges force in such a case the allegation is sur-plusage.
The word “female,” as used in Code Section 4769 making an assault upon a female with intent to commit rape a crime,
"What is an assault? It is an unlawful attempt to commit physical violence upon the person of another with intent to injure. It necessarily includes an attempt. It implies unlawful physical force partly or fully put in motion creating reasonable apprehension of an immediate physical injury to a human being. The word has a well defined meaning in the common law and it has the same meaning in our penal code. There must be an unlawful attempt or offer to apply force to another with intent to do physical injury, and the present means to give it effect. State v. Lewis, 173 Iowa 643 with cases cited; State v. Jerome, 82 Iowa 749.
The assault, being an ingredient of the offense charged, must be unlawful and at the threshold of this case we are confronted with-the question whether the defendant under the evidence did make an unlawful assault upon the person of the prosecuting witness. Could she lawfully consent to the act or acts of the defendant as disclosed by the record?
To what point or state of the proceeding can she give consent to acts on the part of the accused without making him guilty of an unlawful assault? It must be conceded that the instant defendant desired intercourse with the prosecutrix and in the light of their past associations extending over a considerable portion of time it may reasonably be supposed that he expected his request would find fruition, but the evidence shows he was simply soliciting to secure her consent. He attempted nothing toward the act of copulation. Solicitation by mere words with the expectation of consent does not amount to assault with intent to commit rape on a girl under 15 years of age.
In Cromeans v. State, 59 Tex. Cr. 611 (129 S. W. 1129) it
We must distinguish between an actual unlawful attempt to consummate the act and mere preliminary acts to which the prosecutrix could lawfully consent.
We are not dealing with a code of ethics but with legislative enactment and legal definition. No normally moral person can condone the reprehensible and despicable conduct of this defendant. The legalist can join with the moralist and say that the snake in the grass or the reptile in the slimy pool are not .more to be loathed than the human vulture who would take the most priceless gem from the diadem of womanly virtues. Conduct, however immoral, may be legally unobjectionable. Guilt in crime is made dependent upon definition and proof. It is not inferred or presumed, nor is it gauged by any standard of morals although the law finds its basis in moral principles. Acts may shock the moral sense but they are not necessarily prohibited in a criminal or legal sense. Johnson v. State, 27 Neb. 687 (43 N. W. 425); Smith v. Commonwealth 54 Pa. St. 209.
In the defining of crime the sovereign state does not create justice in an ethical sense, although its power to do so is unlimited. A tort is a tort in a legal sense only because the law has made it so. United States v. Thompson, 257 U. S. — (42 Sup. Ct. Rep. 159, 161). No act is a crime in this state unless made punishable by laAV. State v, Banoch, 193 Iowa 851. A man’s evil inclinations or intentions, however reprehensible they may be, are not in the catalogue of public offenses. The mere intention to commit a crime or to do a wrong is not an offense. State v. Thompson, 133 Iowa 741; State v. Kendall, 73 Iowa 255. "Surely the presumption of innocence should prevail until something more tangible than proof of the mere inclination to sin and the chance to commit it is forthcoming.” State v. Thomp
Mere solicitation of intercourse does not render one guilty of assault with intent to rape if no act or effort is made to carry out the intent of the solicitor. State v. Sanders, 92 S. C. 427 (75 S. E. 702); Douglass v. State, 105 Ark. 218 (150 S. W. 860); State v. Butler, 8 Wash. 194; Addison v. People, 193 Ill. 405 (62 N. E. 235); 33 Cyc. 1434; 22 Ruling Case Law 1231.
Some unlawful act overt in its character, which has an immediate relation to and preparation for or the bringing about of a condition under which intercourse can be accomplished, with intent then and there to have intercourse, must be established beyond a reasonable doubt to predicate a verdict of guilty upon a charge of assault to rape. In order that the principle stated may find application in this case in the light of the instruction given let us examine the evidence assuming the testimony of the prosecutrix to be true.
Respecting her relations with the defendant at the time charged in the indictment she said the defendant “put his arms around me first.” This was with her -consent and she could lawfully consent. She voluntarily put her arms around him. He kissed her and she kissed him. It was her legal privilege to permit this manifestation of love on his part and to reciprocate on her part. “We were lying down; Mr. Roby was lying rather on his side; I was lying on my side; we were very close to each other; and our faces were together.”
The prostrate position of these parties was voluntary on the part of each. He did not request or force her to take this position and on various occasions extending over a period of several months they had been under like circumstances at the same place. She had voluntarily gone to this particular spot on this day. They had frequently made love to each other before this date. This was with her consent and it was a lawful consent. While in the position described she testified: “He put his hand under my bloomers; he put his hand on my naked
Is this evidence sufficient to warrant a conviction? No. Was the instruction of the court in the- light of this evidence correct? No. This testimony discloses mere solicitation unaccompanied by a physical' effort to effectuate his intent. No overt act amounting to an assault was committed unless it may be said that she could not lawfully consent to that which was done. Nothing was done by him except to solicit her consent. Everything was lawfully acquiesced in by the prosecutrix and sexual intercourse was neither had nor attempted, nor was an unlawful assault made. There was no overt preparation for the act. Therefore no crime was committed, however intense his desire or wavering his hopes. She was not being detained and there is no present existing intent shown to realize the fruit of a consent not yet given. The mere laying on of hands under the cir-cuihstances is not an unlawful assault, but the court said it was. The jury in this case could rigidly adhere to the literal primary meaning of the words of the instruction given and undoubtedly did so.
The evidence does not support the verdict. It may not be said that “nothing but actual sexual intercourse was necessary, to follow the acts described as an assault, to constitute rape upon a female of that age” (State v. Sherman, supra), since no unlawful assault was committed preparatory to the consummation of the act then and there.
An examination of the Iowa cases of this character dis
In ¡State v. Sherman, 106 Iowa 684 the defendant asked or caused the prosecutrix to lie down and he disarranged and unbuttoned her clothing for the purpose of having sexual intercourse with her. In State v. Carnagy, 106 Iowa 483 the evidence “tends to show that the defendant did his utmost to accomplish his wicked purpose, and if he failed, it was because of the tender years of his victim.” In State v. Johnson, 133 Iowa 38, the accused decoyed the girl from her younger sister, fastened the door when with her in the room and the evidence “tended to show at least two criminal attempts.” In State v. Haugh, 156 Iowa 639 the defendant was found guilty of assault to rape on an indictment charging the crime of rape. The evidence disclosed an actual assault. In State v. Jerome, 82 Iowa 749 an unlawful assault was made by defendant upon a girl four years of age. In State v. Grossheim 79 Iowa 75 the evidence tended to prove that the defendant disarranged and removed the clothing so as to expose the private parts of the prose-cutrix and that he also opened his own clothing, exposed his private parts, and drew the prosecutrix upon his person while he was lying down.
I deem it unnecessary to further examine our own decisions as they are clearly distinguishable on the facts from the instant case. Suffice it to say that the verdicts were predicated on unlawful assaults. It is a sad commentary on human nature that cases like this should occur, but verdicts should stand only when the essential elements of the crime charged have been established, and the acts of the accused constitute a crime under our penal law.