People v. Oberstaedt
| Decision Date | 06 April 1964 |
| Docket Number | No. 97,97 |
| Citation | 127 N.W.2d 354,372 Mich. 521 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Alfred OBERSTAEDT, Defendant and Appellant. |
| Court | Michigan Supreme Court |
George F. Taylor, Pros. Atty., David F. Breck, Asst. Pros. Atty., Pontiac, for the People.
Renne, Peres, Powell & Carr, Pontiac, for defendant and appellant.
Before the Entire Bench.
Defendant was arrested and tried on a 2 count information charging sex offenses committed upon a 15 year old female. Defendant was charged in one of the counts of the information with statutory rape 1, the other count charging the crime of indecent liberties. 2 The offenses charged were alleged to have been committed on July 3, 1961. Testimony was presented by the prosecution to the effect that defendant, the prosecutrix and a girl friend of the latter, spent the night in question at defendant's home. During this time the improprieties allegedly occurred, consisting of defendant's application of lotion and talcum to the unclothed body of the prosecutrix, followed 'a couple of minutes' later with defendant's attempt to have sexual intercourse with the prosecutrix.
At the close of proofs the jury returned separate verdicts finding defendant guilty of assault with intent to commit rape and indecent liberties. Following rendition of the verdicts, defendant was sentenced to terms of 2 1/2 to 10 years imprisonment for each offense, said sentences to be served concurrently. Upon leave granted, defendant appeals from his convictions and a denial of motion for new trial.
Among the errors asserted by defendant is that conviction for both assault with intent to rape and indecent liberties was illegal, it being claimed that the 2 offenses arose from the same transaction and were inconsistent with one another. Regarding this contention, defendant directs our attention to the statutory provision pertaining to indecent liberties, which provides in part:
'Any male person or persons over the age of 16 years, who shall assault a female child under the age of 16 years, and shall take or attempt to take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape * * * shall be guilty of a felony * * *.' (Emphasis supplied.) C.L.S.1956, § 750.336 (Stat.Ann.1954 Rev. § 28.568).
The crime of indecent liberties, although having some of the characteristics of assault with intent to commit rape, is nevertheless not one of the lesser degrees of statutory rape. People v. Noyes, 328 Mich. 207, 43 N.W.2d 331. An information for rape, however, necessarily embraces the lesser included offense of assault with intent to commit rape. People v. Abbott, 97 Mich. 484, 56 N.W.862. Further, while the aforementioned indecent liberties statute expressly requires negation of statutory rape, intended or committed, the intent is held to be the gist of the offense of assault with intent to rape. People v. Dowell, 136 Mich. 306, 99 N.W. 23; People v. Guillett, 342 Mich. 1, 69 N.W.2d 140.
In the case at bar defendant was tried on a 2 count information, a count for the crime of indecent liberties being joined with a count charging statutory rape. The joinder of these 2 counts in the information is permissible under the statutory provision that:
'Any indictment charging any person with rape, or an attempt to commit rape, upon any female, if such female shall be at the time such offense is claimed to have taken place, under the age of 16 years, may also contain a count charging such person with taking indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape; and the jury may convict of either offense, * * *.' C.L.1948, § 767.82 (Stat.Ann.1954 Rev. § 28.1022).
The count charging defendant with taking indecent liberties with the prosecutrix was contained in the information charging defendant with statutory rape, notwithstanding that the result was not a conviction for statutory rape, but rather for the lesser offense of assault with intent to rape Further support regarding the propriety of joinder of these counts may be gleaned from the following language of the Court in People v. Johns, 336 Mich. 617, 622, 59 N.W.2d 20, 22:
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People v. Jones
...People v. MacPherson, 323 Mich. 438, 448, 35 N.W.2d 376 et seq.; People v. Guillett, 342 Mich. 1, 7, 69 N.W.2d 140; People v. Oberstaedt, 372 Mich. 521, 526, 127 N.W.2d 354. Defendant has a right to have a properly instructed jury pass upon the evidence. People v. Visel, 275 Mich. 77, 81, 2......
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...on all the essential elements of the crime. See People v. Guillett, 342 Mich. 1, 7--8, 69 N.W.2d 140 (1955); People v. Oberstaedt, 372 Mich. 521, 526, 127 N.W.2d 354 (1964).6 While the trial judge adopted his instructions directly from Gillespie, Michigan Criminal Law & Procedure (2d ed.), ......
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