Gibbs v. People

• Decision Date: 02 April 1906
• Citation: 36 Colo. 452,85 P. 425
• Parties: GIBBS v. PEOPLE.
• Court: Colorado Supreme Court

85 P. 425

36 Colo. 452

GIBBS v. PEOPLE.

Supreme Court of Colorado

April 2, 1906

Error to District Court, San Juan County; Jas. L. Russell, Judge.

Frank H. Gibbs was convicted of an assault with intent to rape, and he brings error. Affirmed.

W. J Miles, for plaintiff in error.

N. C Miller, Atty. Gen., for the People.

GABBERT C.J.

The question presented for determination in this case is whether or not an information, in order to charge an assault with intent to commit rape upon a prosecutrix under the age of consent, must state that such assault was made with intent to carnally know her forcibly and against her will. Counsel for plaintiff in error contend that the offense set out in the information, to which the accused pleaded guilty, and on which plea he was sentenced to the penitentiary, did not charge an assault with intent to commit rape, but simple assault only, for the reason it did not state intent on the part of the accused to use force against the will of the prosecutrix to accomplish his purpose in making the assault, although it was charged that she was under the age of 18 years. The statute provides that rape is the carnal knowledge of a female forcibly and against her will, and also that every male person over a specified age who shall carnally know any female under the age of 18 years with or without her consent, shall be adjudged guilty of the crime of rape. Section 1211, 1 Mills' Ann. St. Both offenses, as defined, are rape. In the first, the employment of force on the part of the accused against the will of the prosecutrix is an essential element; but not so with the second, because, where the prosecutrix is under the age of consent, force on the part of the accused and want of consent of the female are immaterial. This being true, it logically follows that facts which are not material to establish the accomplished offense are immaterial in charging an assault with intent to commit such offense, for the reason that in charging an assault with intent to commit rape it is only necessary to charge acts which would have resulted in the commission of the principal crime had the purpose of the assault been accomplished. Thus tested it is apparent the information is sufficient. The statute makes an assault with intent to commit rape a felony. Section 1215, 1 Mills' Ann. St. From the averments of the information it appears the defendant did actually assault the prosecutrix with intent to carnally know her, and that she was under the age of 18 years, so that, under the statute, had he succeeded in accomplishing the purpose for which he assaulted her, he would have been guilty of the substantive crime of rape regardless of the degree of force used or the question of consent upon her part. State v. Johnston, 76 N.C. 209; State v. Dancy, 83 N.C. 608; Davis v....