People v. Gibbons
| Decision Date | 16 September 1932 |
| Docket Number | No. 163,April Term.,163 |
| Parties | PEOPLE v. GIBBONS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County; Glenn C. Gillespie, Judge.
John A. Gibbons was convicted of assault with intent to commit rape, and he appeals.
Reversed.
Argued before the Entire Bench.
Rodney Baxter, of Detroit, for appellant.
Paul W. Voorhies, Atty. Gen., Clarence L. Smith, Pros. Atty., and Edward J. Fallon, Asst. Pros. Atty., both of Pontiac (H. B. Selden, of Pontiac, of counsel), for the People.
John A. Gibbons appeals from a judgment of conviction of assault with intent to commit rape. As only questions of law are raised, it is unnecessary to review the facts. The original information charged that ‘John A. Gibbons attempted to rape and ravish Lillian Bennett.’ At the trial, prior to the introduction of any evidence, and in the absence of the jury, respondent's attorney moved to quash the information on the ground that the testimony at the examination before the justice showed an attempt to seduce and not to rape. Thereupon the prosecuting attorney was permitted to amend the information so as to charge ‘assault with intent to commit rape.’ Respondent's attorney stated that he was willing to admit, for the purpose of argument, that the testimony at the examination did show the elements of assault with intent to rape, to some extent, but that the information could not be amended so as to charge a different crime. The court held that the ‘kindred’ offenses were so ‘similar’ that he would permit the amendment. He also refused to grant respondent a continuance.
It is claimed that the court erred in permitting the amendment and refusing to grant an adjournment, and also that there should have been a new arrainment and examination under the amended information. The charge in the original information was worded in accordance with the abbreviated forms in subsection headed ‘Attempt’ under section 17258, Comp. Laws 1929. It was in proper form. No bill of particulars was requested by respondent. Respondent claimed that an attempt to commit rape is a commonlaw misdemeanor and not a statutory offense. Section 17342, Comp. Laws 1929, distinctly provides a punishment for every person who shall attempt to commit an offense prohibited by law, and in such attempt shall be any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt. The punishment for attempting to commit rape under subsection 2, § 17342, Comp. Laws 1929, is for a term of not over five years, that for assault with intent to commit rape is for a term of not over ten years. 3 Comp. Laws 1929, § 16728. One charged with rape may be convicted of assault with intent to commit rape, assault and battery, or simple assault. People v. Eddy, 252 Mich. 340, 348, 233 N. W. 336.
It is claimed, however, that assault with intent to commit rape is a different crime entirely from an attempt to commit rape, and that the information charging one crime cannot be amended so as to charge an entirely different crime. The distinction between the two crimes is pointed out in People v. Gardner, 98 Cal. 127, 32 P. 880;In re Stahlnaker, 93 Kan. 622, 144 P. 832;Payne v. Com., 110 S. W. 311,33 Ky. Law Rep. 229;Miller v. State, 84 Tex. Cr. R. 168, 206 S. W. 524;Ross v. State, 16 Wyo. 285, 93 P. 299,94 P. 217;Bowmer v. State, 157 Tenn. 124, 6 S.W.(2d) 326;Fox v. State, 34 Ohio St. 377. Also see Hogan v. Florida, 50 Fla. 86, 39 So. 464,7 Ann. Cas. 139. On the other hand, the following cases hold that the two crimes are similar; Rookey v. State, 70 Conn. 104, 38 A. 911;Johnson v. State, 14 Ga. 55;Lewis v. State, 35 Ala. 380;State v. Smith, 80 Mo. 516;State v. Frazier, 53 Kan. 87, 36 P. 58,42 Am. St. Rep. 274. An attempt to commit rape is usually accompanied with an assault, though ca...
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...Brantley was a different offense than the alleged attempted rape which was the felony of the charged felony-murder, People v. Gibbons, 260 Mich. 96, 244 N.W. 244 (1932). And both were different than the killing of Turner, upon which the murder charge was predicated. Even though the charges ......
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