People v. Petty, 144.
| Decision Date | 20 March 1926 |
| Docket Number | No. 144.,144. |
| Citation | 234 Mich. 282,207 N.W. 920 |
| Parties | PEOPLE v. PETTY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Circuit Court, Ottawa County; Orien S. Cross, Judge.
Frank Petty was found guilty of an assault with intent to commit the crime of rape, and he brings exceptions before sentence. Exceptions overruled, and case remanded.
Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. Lokker & Den Herder, of Holland, and Lynn J. Lewis, of Bangor, for appellant.
Fred T. Miles, Pros. Atty., of Holland, for the People.
Defendant here reviews on exceptions before sentence his conviction of assault with intent to commit the crime of rape. Without detailing it, the testimony of the prosecutrix, who was above the age of consent, established, if believed, an assault by defendant upon her with such intent and her successful resistance of the same. Defendant gave testimony in his own behalf which, if believed, established that he had on previous occasions had illicit relations with prosecutrix, and that on the occasion in question he went no further than to solicit a repetition of such relations with no intent to commit rape. The prosecutrix denied any prior acts of intercourse.
1. The first question which we should consider grows out of information as filed and an amendment made to it on the trial. The complaint filed with the magistrate, and upon which an examination was had, charged that:
‘Heretofore, to wit, on the 24th day of June, A. D. 1925, at the township of Jamestown in the county aforesaid, one Frank Petty did then and there willfully, unlawfully and feloniously make an assault upon her, the said Ada Hoeve, a female person being then and there over the age of sixteen years, to wit, the age of twenty-two years, by force and against her will, with intent to commit the crime of rape.’
The information as originally filed did not contain the words ‘by force and against her will,’ but did allege the assault ‘with intent to commit upon the person of said Ada Hoeve the crime of rape.’ After the jury had been sworn, defendant's counsel filed a motion to quash the information, claiming that it was insufficient because of the omission of the words ‘by force and against her will.’ The trial judge, doubtless acting under section 15747, C. L. 1915, permitted an amendment to the information by adding these words, and the case proceeded over defendant's objection.
We pass without comment the fact that the motion was not made at the time pointed out by the statute, that under the complaint the prosecuting attorney was authorized in the first instance to file an information containing the words in question, and that we have liberal statutes of amendments, and take up at once the question of the sufficiency of the information as originally filed. The crime with which defendant was charged and of which he stands convicted is a statutory one, the statute being section 15212, C. L. 1915, which reads as follows:
‘If any person shall assault any female with intent to commit the crime of rape, he shall be deemed a felonious assaulter, and shall be punished by imprisonment in the state prison not more than ten years, or by fine not exceeding one thousand dollars.’
The original information charges defendant in the language of the statute with an assault ‘with intent to commit * * * the crime of rape.’ We need consider but one case to establish the sufficiency of the information. In Rice v. People, 15 Mich. 9, the information charged an assault with intent to murder; it did not charge the offense to have been committed ‘feloniously, willfully, and of malice aforethought,’ and it was insisted that this omission rendered it defective. Mr. Justice Cooley considering this objection said:
So we say, as applied to the case before us, where the female is above the age of consent, rape is the carnal knowledge of the female by force and against her will, and the charge of an assault with intent to commit rape is a charge of an assault with intent to carnally know the female under such circumstances as to amount to rape. The recent case of People v. Donovan, 199 N. W. 620, 228 Mich. 149, is clearly distinguishable. In that case it did not appear that there had been an examination or what the complaint contained, the information did not follow the statute, charged no statutory crime or any crime known to the law. It therefore could not be amended. There...
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People v. Bouchee
...In the past we have allowed prosecutorial forays into a witness's general character in order to challenge credibility, People v. Petty, 234 Mich. 282, 207 N.W. 920 (1926), People v. Cutler, 197 Mich. 6, 163 N.W. 493 (1917); however, we have also attempted to limit character impeachment to t......
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People v. McPherson, Docket No. 10773
...It is only used in explaining the element of intent. The gist of the offense of assault with intent to rape is intent. People v. Petty, 234 Mich. 282, 207 N.W. 920 (1926). In addition, defense counsel, when asked if there were any objections to this charge, replied, 'no objections.' Absent ......
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People v. Phillips, 4
...punishable as a felony by M.C.L.A. § 750.85 (Stat.Ann.1962 Rev. § 28.280). The gist of this offense is intent. People v. Petty (1926), 234 Mich. 282, 207 N.W. 920; People v. Guillett (1955), 342 Mich. 1, 6, 69 N.W.2d An accused charged with rape may be convicted of assault with intent to co......
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People v. Timmons
...to be the general rule supported by the majority of jurisdictions. See the many cases collated in 60 A.L.R. 1125. In People v. Petty, 234 Mich. 282, 287, 288, 207 N.W. 920, where the charge was also assault with intent to commit rape, and the testimony of prosecutrix directly conflicted wit......