State v. Gailey

• Decision Date: 16 March 1949
• Docket Number: 7435
• Parties: STATE v. GAILEY
• Court: Idaho Supreme Court

204 P.2d 254

69 Idaho 146

STATE v. GAILEY

No. 7435

Supreme Court of Idaho

March 16, 1949

Appeal from District Court, Eleventh Judicial District, Twin Falls County; James W. Porter, Judge.

Affirmed.

Marshall Chapman and Lawrence B. Quinn, both of Twin Falls, for appellant.

Assault with intent to commit rape is the vital element in this case and in order to uphold the conviction the evidence must show beyond a reasonable doubt that the defendant not only committed the assault, but that he intended to commit an act of sexual intercourse with the prosecutrix, and that the assault was made with the requisite, specific intent. State v. Andreason, 44 Idaho 396, 257 P. 370; State v. Bernhardt, 51 Idaho 134, 3 P.2d 537.

The specific intent inherent in the crime of assault with intent to commit rape cannot be inferred from the action of a defendant where he is so drunk as to be incapable of entertaining the necessary intent. 44 Am.Jur. Par. 40, p 926, Note 13; 15 Am.Jur. (criminal law) Par. 340, p. 30, Note 9; State v. Rumble, 81 Kan. 16, 105 P. 1, 25 L.R.A.,N.S., 376; Booher v. State, 156 Ind. 435, 60 N.E. 156, 54 L.R.A. 391; State v. Stenback, 78 Utah 350, 2 P.2d 1050, 79 A.L.R. 878.

The endorsement of additional names on the information after the commencement of the trial cannot be allowed where the rights of the defendant are jeopardized and he does not have the opportunity to controvert the testimony given, and particularly where said witnesses were known prior to trial. Sec. 19-1201 I.C.A.; State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Mundell, 66 Idaho 297, 158 P.2d 818; State v. Stewart, 46 Idaho 646, 270 P. 140.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., Boise and Everett M. Sweeley, Pros. Atty., of Twin Falls, for respondent.

The credibility of all witnesses and the weight to be given their evidence is exclusively for the jury to determine. State v. Murray, 43 Idaho 762, 254 P. 518; State v. Leavitt, 44 Idaho 739, 750, 260 P. 164; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791; State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. Gilbert, 65 Idaho 210, 217, 142 P.2d 584; State v. Griffith, 55 Idaho 60, 64, 37 P.2d 402; State v. Huff, et al., 56 Idaho 652, 659, 57 P.2d 1080.

Intoxication is no defense for crime. It is to be considered in determining the existence of the intent only in cases where the intent is a necessary element of the crime charged. I. C. A., sec. 17-116; California, Code of 1872, sec. 22; People v. Ferris, 55 Cal. 588, 592, and earlier decisions there cited.

The endorsement of the names of recently discovered witnesses was not error. I. C. A., sec. 19-1202; State v. Allen, 20 Idaho 263, 117 P. 849; State v. Hoagland, 39 Idaho 405, 422-424, 228 P. 314, and authorities therein cited.

Sutton, District Judge. Holden, C. J., Givens and Hyatt, JJ., and Sutphen, D. J., concur.

OPINION

Sutton, District Judge.

The appellant was charged with and convicted of the crime of assault with intent to commit rape alleged to have been committed on the person of a fourteen-year old girl on the 29th day of June, 1947, in Twin Falls County. From this conviction and the judgment rendered thereon, he has appealed and makes 32 assignments of error.

The first nine assignments all begin with the statement, "The verdict and judgment of conviction are against the evidence and are not sustained thereby", which statement is followed by a recital of the various particulars in which it is claimed the evidence does not support the conviction, such as that the evidence of the prosecutrix at the trial shows a material departure from her evidence at the preliminary examination; that the testimony of the prosecutrix with respect to the identification of the defendant is inherently improbable and incredible; that the evidence shows that at the time of the alleged assault, the defendant was in a drunken stupor and incapable of entertaining the necessary specific intent; that the conviction was the result of a studied attempt to inflame the minds of the jury; that the specific intent necessary to the crime charged is not proved.

These several assignments, in our opinion, go no further than to raise questions as to the credibility of the witnesses and the weight to be given to their testimony, which are matters exclusively for the jury to determine, State v. Murray, 43 Idaho 762, 254 P. 518; and these several assignments require no further consideration except as they are incidentally noticed later in this opinion.

By Assignment No. 31, it is charged the court erred in overruling defendant's demurrer to the information, it being contended the particular circumstances of the offense charged are not sufficiently set forth in the information.

Perhaps it would have been better had the information contained a more extended recital of the circumstances. However, we are not here concerned with a case requiring either allegation or proof of an assault calculated to overcome the resistance of the prosecutrix by force or fear, the victim of the assault in this case being but fourteen years of age, State v. Bernhardt, 51 Idaho 134, 3 P.2d 537; and we are of the opinion the information was sufficient and there was no error in overruling the demurrer to it.

By Assignment No. 32, it is charged the court erred in permitting the endorsement of the names of two additional witnesses on the information after the commencement of the trial.

The record discloses that on January 30, 1948, the Prosecuting Attorney served upon counsel for the defendant a notice that when the cause was called for trial, he would move the court for an order permitting him to endorse the names of these two additional witnesses on the information, and that the Prosecuting Attorney first learned of the witnesses on that date. The record further shows the trial commenced February 5; that at the beginning of the morning session on February 6, in the absence of the jury, the Prosecuting Attorney moved for an order permitting the endorsement of the additional names; and by reason of the fact no formal motion, but only a notice of intention to move for such an order, was in the record, the matter was continued by the court until 1:30 p. m. when, the formal motion having been filed, the court made an order permitting the endorsement of the names of Harvey Fornwalt and Katherine Fornwalt upon the information. In objecting to the endorsement of the additional names, the defendant did not contend that he was in anywise surprised nor did he ask for a continuance, but based his objection upon certain alleged deficiencies in the procedure followed by the Prosecuting Attorney. In ruling upon the matter the trial judge stated: "The court is of the opinion that the defendant will not be taken by surprise or placed at any undue disadvantage under the law."

We concur in that opinion, and there was no error in permitting the endorsement of the additional names. State v. Hoagland, 39 Idaho 405, 228 P. 314.

By Assignment No. 10, it is charged the court erred in giving Instruction No. 7 without incorporating therein, "the definition of assault with intent to commit rape, defined in Sec. 17-1207, I.C.A."

Instruction No. 7 was a copy of Sec. 17-1601, I.C.A. so far as it is applicable to the case. Sec. 17-1207, I.C.A. does not define any offense, but rather fixes the penalty for certain types of assault. There was no error in giving Instruction No. 7.

By Assignment No. 11, it is charged the court erred in giving Instruction No. 14; and by Assignments No. 12 to No. 29 inclusive, it is charged the court erred in refusing to give defendant's requested Instructions Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20 and 21,

An examination of the record fails to disclose what defendant's requested Instructions Nos. 8 and 11 were, and thus Assignments No. 18 and No. 21 cannot be considered.

Requested No. 1 was that the jury be instructed to find the defendant not guilty. The refusal to give such an instruction is not reviewable in this court, State v. Stevens, 48 Idaho 335, 282 P. 93. This also disposes of Assignment No. 30.

Requested Instruction No. 14 is a so-called "cautionary instruction" and it was not error to refuse it, State v. Elsen, 68 Idaho 50, 187 P.2d 976.

The other several assignments, with respect to instructions requested and refused, in the main raise but a single question; and that is whether or not the jury was correctly instructed with respect to the law concerning the effect of voluntary intoxication in determining the existence or non-existence, on the part of the defendant, of the specific intent necessary to constitute the offense charged; and the several assignments, we believe, may be considered together. In order to do so, it becomes necessary to summarize and cite a few specific items of the evidence. It may be fairly said the record shows without contradiction that between 1:00 and 2:00 o'clock of the morning of June 29, 1947, the young lady in question was asleep in her bed in the family home just on the border of the village of Hansen; that she was alone in said home, her father and mother being absent by reason of illness of her mother; that she was awakened by finding a man in bed with her, who then and there made an assault upon her with the avowed purpose of accomplishing an act of sexual intercourse; that a very considerable struggle ensued during which the girl was choked, her face bruised and one eye blackened, and a large bump raised upon her head that she finally escaped her assailant by striking him with a potted plant and ran screaming from her home in her night clothes, barefooted, in a more or less hysterical state to the home of a neighbor not over 100 feet distant, where she then...