169 N.W. 547 | S.D. | 1918
Appellant was convicted of an assault with intent to commit rape and appealed from- the judgment of conviction and from an order denying him a new trial.
“Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not prescribed by the preceding section, is punishable,” etc.
The authorities are hopelessly divided upon the question of the necessity, in an information or indictment for rape, of an allegation that the person ravished was not the wife of the ravisher. An examination of the authorities discloses that this diversity of holding does not rest upon the fact that, in the states whose courts hold one way, the statutory definition of “rape” contains a de
“The rule is well established that although in burglary and statutory housebreaking the intent, as defined by the law, is simply to commit a felony, it is not sufficient in the indictment to follow these general words, but the particular felony intended-must be specified. The allegation of the ulterior felony intended need not, however, be set out as fully and specifically as would be required in an indictment for the actual commission of the felony. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape or arson.”
Appellant has assigned numerous errors in the rulings upon receipt of evidence. A brief -statement of some of the undisputed facts a-s well as the variant claims of appellant and the complaining witness will assist to 'an understanding of the merits of such assignments as we shall consider. The complaining witness entered the home of appellant as housekeeper on or about June 10th; the offense is charged to have been committed on July 16th. She testified that, on the evening of July 16th, he made improper
The doctor was allowed to testify as to the physical -condition of the -complaining witness. It is clear that testimony as to conditions found' on the 25th -could not, in the light of the other -evidence, have thrown the least light upon the disputed- question of appellant’s intent on July 16th.
W'e are satisfied that the errors above noted were prejudicial, in that they permitted' the receipt of evidence which tended to lead the minds of the jurors from the issues before them.
The judgment and order appealed from are reversed.