*1 592 WATERS.
STATE 357.) (253 February 11, P. 2d 1953. Decided No. 7812. S., Rape, rape. 77. 75 C. J. sec. Assault intent to commit See Jur., Rape, 44 Am. sec. 21. Olsen, Richfield, Tex R. for appellant. Gen., Vernon, Atty. Maughan, D. Richard Asst.
Clinton J. Atty. Gen., Erickson, Richfield, Atty., Vernon J. Dist. for respondent.
WADE, Justice.
Defendant, Waters, jury Delbert waived a trial and the guilty court him of an found assault with intent to rape year girl, old hereinafter called the prosecutrix. contending finding, He thаt the court’s that appeals all reasonable doubt that the assault was made with eliminated, to commit was unreasonable rape finding under the evidence. conclude We that such reason, judgment. within the bounds of and affirm the 31, 1951, mother of the July the father and prosecu- On visiting National away from home Yellowstone trix were *2 Sigurd, was alone in their Utah and the Park prosecutrix August morning 1, after in the of she home. About 12:20 lights bed, Gary, off and retired to a had turned the neighborhood year boy acquaintance, came with the old man, defendant, more mature but not so well knоwn they to her home which entered without the prosecutrix, lights. knocking Gary Both and turned on the front room starting drinking and defendant had since out with been get intention to drunk about 8:30 the the avowed previous evening, they when left beer cans in and departed empty entering house, Gary the home. called and On first girl staying if with asked the his friend was prosecutrix “no” her and when she answered he and thе defendant pro- ceeded without invitation into her bedroom where there calling girl, although was some talk about another and suggested Gary, it that was too late apparently рrosecutrix call, in to make such left Delbert her room alone. The prose- cutrix asked defendant to leave the bedroom he re- but making by mained there some advances hеr on the patting calling head and her “blondie” at which tried to she slap call, Gary his hand. her returned to the bedroom and Upon get they girl; her to and call the other up asked this she they rеfused while were in the bedroom and with some urging Gary, on the of the defendant left the room part Gary coat while the into house prosecutrix slipped call and then she tried to makе the but received no answer. requested them to leave a number of times and re- She quested Gary defendant, not to leave alone with her again began lying Gary while on the floor defendant making by her which advances toward she tried to avoid running get into her before she could the door bedroom but way her where closed he forced his into the bedroom with he arms around her and her onto the bed pushed put off, lay on him her. When she was unable to top push Gary she called to who came into the bedroom and took hold of defendant and force and partly partly per- got then, suasion defendant off from her and after she had urgently requested Gary defendant to leave the house and him, they not to leave without left. they out, doоr,
As soon as were she locked the front testifying that not lock she did the back door because she get boy had to leave it so a open early chore could in morning. again lights rеtired, She turned the off and away soon she heard car their drive and she went to sleep.
A few hours later she was aroused from her sleep embracing defendant in her her bed around thе waist from behind, against with his face pressed the back of her neck. He was clothed but his were pants unbuttoned and his penis out, trying and he legs. it between her press IWhen *3 hands, she tried to remove his he moved them onto her breasts I pressing “so hard could not move” and then down to the body lower of her part under her which he panties tried to remove. She made desperate effort to remove gathered his hands and he her in hands his and held them firmly for a short and she period raised partly on her up elbow. He remained still and she felt his ease grasp so she took one hand after the other from body around her when she found that he did not move them back but ap- to peared have passed out or fallen she asleep darted for the bathroom and locked the door. He made no further move and she into a slipped house coat and in her bare feet ran for a couple blocks to her uncle and who, аunt’s place after them, she had aroused called the town marshal who in turn after he had found defendant still on her asleep county bed called the sheriff who took the defendant intо custody.
Defendant contends that the evidence does not exclude all reasonable doubt of his intention to force intercourse her. upon He relies State Whittinghill, v. 48, 109 Utah 342, quoting 163 P. 2d extеnsively from Mr. Justice Turner’s which opinion was not concurred in majority wished who There a taxi driver took prosecutrix, court. necessary fare, go Hill Field lacked the to to her work at but where he intercourse and made to a lonesome road proposed when he found was an indecent assault but desisted she did not exclude unwell. We held that those circumstancеs intention have all reasonable doubt of his to intercourse when he was force since he ceased his efforts found she unwell. different; every
Here the facts are act he did сonscious after he returned alone to her home indicated that he in- to tended intercourse with her force. He accomplish alone, into broke the home where he knеw she he un- was got buttoned his his into her pants bed exposing penis tightly with her while she was and embraced her asleep trying legs, at the same time to force his between her penis his on her hands brеasts and at placing privates trying same time to remove her This continued panties. suddenly, until he and apparently out unexpectedly, passed nothing or fell There is which asleeр. this case indicates voluntarily an intention on the of defendant to part cease struggle. or from withdraw to the time that she Up weakening, strong noticed his he grip and seemed to be аccomplishing This case is somewhat purpose. Norrington, similar the case of People Cal. App. 103, 932, 202 P. where a policeman started drive mar- inquired ried woman home who had of him about the street car, but drove her to lonesome road where he tried to force her to have intercourse with him. In the course of the *4 struggle, he had an emission without and on penetration question those facts the court held that it awas of fact for jury the whether he intended to overcome her resistance case, force and one, violencе. In that as in this the defen- struggle dant ceased the on account of his own physical condition. question
We do not the rule that in order to sustain a conviction for an assault with to commit the attempt rape, beyond Court had to find a reasonable doubt that the de- girl by fendant intended to violate the force spite anything do to it. But if of she could he had prevent the ovеrt described in such intent and did acts above thereof, something the fact that occurred which pursuance change him to his intention not caused would thereafter being guilty only of such assаult. The prevent his basis which we would be authorized to reverse the convic upon finding guilty tion the would be basis that the of upon such that so reasonable minds could not conclude. We con finding clude that of the the court that the evidence ex cluded all doubt of intention to reasonable commit rape was within of the bounds reason.
Judgment affirmed. is WOLFE, McDONOUGH, J., CROCKETT, JJ., C. concur.
HENRIOD, dissenting. J., dissent,
I suggesting that rеspectfully main opinion necessary has confused the intent involved in an assault drunken, with intent to commit rape, with a un- poor successful show of There is no here salesmanship. violence attending generally of the charged, type the serious offense feelings injured. where more than woman’s are There clothing, scratches, was no torn no lesions or The bruises. only roving evidence of intent to force overpower was a embrace, hand and a firm of which became relaxed —both himself, when the defendant found not in the arms prosecutrix, but in thоse of Morpheus. say
To justify facts this case a conclusion that the beyond acts showed a reasonable doubt that the accused had force, specific overpоwer or that his actions were such as to any be unexplainable reasonable hypothesis is, other than that of intent to overpower, writer, unrealistic and not reflected in the record.1
1People Mullen, ., (1941). . . . Cal. .. 2d 11 P. *5 one who rape sleeps, to comprehend difficult It is bent sex equally person to' contemplate difficult succumbing To force, slumber. convict here to peaсeful violating the canon that “as a man for biblical tois punish * * * Fortunately, thinketh, he.” such a doctrine so is from the courts. —otherwise little or no support has received the prison’s few would be spared lament.. charged assault, an had the
It is believed that prosecution nearly the offense.' The more would have fitted the facts case, Whittinghill evidence of its scratch- facts roughness, ing, bruising unnecessary seem and some stronger here, where the that can be than those best said yielded The accused that a firm desire to sweet repose. is to have a or either was too drunk specific rapé, acquire too tired to one.
MARTIN v. JONES. February (253 2, 359.) 7766. Decided 1953. P. 2d
No.