85 P. 433 | Utah | 1906
1. The defendant was convicted of an attempt to commit incest on bis daughter, then between eleven and twelve years of age. At the time in question the defendant occupied a cot in a sleeping room, and his daughter, with several smaller ■children, occupied a bed in the same room. Defendant’s wife, who, about two weeks prior to the commission of the offense, was confined, occupied, with an attendant, an adjoining room. On the evening in question, the defendant had retired and when his daughter entered the room, also' to' retire, and commenced undressing, he called to her to lie down with him. She did so. He caressed her and then unpinned and raised her garments and attempted to have sexual intercourse with her. She said he penetrated her “about that far,” (indicating) which counsel, on cross-examination, said was about three-quarters of an inch, and she said, “about that.” She testified that she did not consent to the act, and tried to pull away from the defendant but was unable to do so because he held her; that he attempted intercourse with her the second time, and then dropped off to sleep; she said it hurt her, but she did not call out to her mother because she was frightened. After the second attempt she left his cot, and sat on her bed thinking whether she should tell her mother. After a few minutes she went into her mother’s room and told her. Her mother asked her to go with her into the defendant’s room and there repeat in his presence what she had said to her. At first the girl hesitated because of her excitement and fear of the defendant, but finally did so. The defendant said, “I didn’t, did I, Mandy ?” She said that he did. The defendant arose, knelt before his wife and begged forgiveness. She told him- to take his bed and go in the kitchen. The defendant went into the kitchen and there walked back and forth crying and calling himself names. The chief of police and several other officers testified that the defendant, at the time of his arrest, said that he had attempted to have intercourse with his daughter, but then thought of the wrong he was doing, and quit.
2. The first error assigned relates to the admission of tes
3. Mary Eastman, a witness on behalf of the state, was asked: “Did Amanda Winslow [the prosecutrix] make any complaint to you at any time about her father having any carnal knowledge of her?” Over defendant’s general objection, she answered, “Yes, sir'.” She did not remember the date, but said that she remembered the day that the girl went to the doctor’s office and that it was three or four days before
The appellant concedes this right in a rape case, but denies it in a ease of incest. This might well be true in a case of incest where the act of intercourse was a concurring assent of both parties and where, therefore, the female would be an accomplice. But here the prosecutrix had not consented as a matter of fact; and, because of her age, under the statute, she was legally incapable of yielding consent. In such a case we perceive no good reason ydiy the rules of evidence here under consideration do not obtain the same as in a case where the charge is rape. The reasons, as stated by the authorities,' rendering this kind of evidence admissible in a case of rape equally exist in all cases where the person of •the female was, or was attempted to' be, violated forcibly, and without her consent, and where she is not an accomplice. It is, however, urged by appellant that to make the evidence admissible it must be part of the res gastae. That is not the rule. When the complaint is a part of the res gestae, then not only the fact of the complaint may be given in evidence, but also the particulars and the things said and done as a part thereof. When it is not a part of the res gestae, as this was not, then only the fact that complaint was made of the injury, to whom it was made and when may be given except
4. It is further urged that the court ought to have directed a verdict for the defendant, because the evidence on the part of the state showed that the prosecutrix had not yielded consent; and, therefore the defendant was guilty of rape or an attempt to commit rape, and could not, for that reason, be convicted of incest or an attempt to commit incest. This presents the question as to whether a defendant charged with incest can be convicted thereof if the evidence shows that he forcibly had carnal knowledge of the female, and without her consent. It seems, under some statutes, it has been held that he cannot be so convicted. (De Groat v. People, 39 Mich. 124; State v. Jarvis, 20 Or. 437, 26 Pac. 302, 23 Am. St.
“If any person related to another person within and not including the fourth degree of consanguinity, computed according to the rules of the civil law, shall . . . have sexual intercourse with, such other so related person, knowing her or him to he within said degree of relationship, the person so offending shall he deemed guilty of incest.”
Whatever force there is to the argument that mutual consent is necessarily implied by the use of the terms, shall have sexual intercourse “together,” or with “each other,” it does not equally apply to the Utah statute, “have sexual intercourse with, such other so related person.” (Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691; Norton v. State, supra.) The request was. properly denied.
5. It is also urged that the defendant, on the charge of incest, cannot properly be convicted of an attempt to commit incest. Section 4893, Bevised Statutes 1898, provides:
“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of the attempt to commit the offense.”
When a party proceeds far enough in the perpetration of a crime as to clearly indicate his intention, coupled with an attempt to carry it into effect, and thereafter desists or fails to consummate the crime he may be found guilty of an attempt. We see no reason why an exception should be made in the crime of incest. None is made by the statute, nor by the authorities. It is said,
“An attempt to commit incest has been said to contain two elements— an evil intention and a simultaneous resulting act which, if fully performed, would constitute the substantive crime.” (16 Am. & Eng. Enc. L. 141.)
The authorities generally hold that on a charge of incest the defendant may be convicted of an attempt to commit incest. (State v. McGilvery, 20 Wash. 240, 55 Pac. 115;
The record does not disclose any error. The judgment of the court below is therefore affirmed.