People v. Richardson

• Decision Date: 19 July 1923
• Docket Number: No. 108.,108.
• Citation: 224 Mich. 66,194 N.W. 612
• Parties: PEOPLE v. RICHARDSON.
• Court: Michigan Supreme Court

224 Mich. 66

194 N.W. 612

PEOPLE

v.RICHARDSON.

No. 108.

Supreme Court of Michigan.

July 19, 1923.

Exceptions from Circiut Court, Newaygo County; Wm. B. Brown, Judge.

Elwood Richardson was convicted of assault with intent to rape, and he brings exceptions before sentence. Reversed, and new trial ordered.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Wm. J. Branstrom, of Fremont, for the People.

F. E. Wetmore, of Hart, for respondent.

McDONALD, J.

Elwood Richardson was convicted of an assault with intent to commit the crime of rape upon a girl under 16 years of age, who was at the time employed as a domestic in his home in Newaygo county. The information filed against him contains two counts; the first charging statutory rape and the second assault with intent to commit the crime of rape. The defendant denied the assault. He was twice tried; the first trial resulting in a conviction of the lesser offense. The trial court set this verdict aside and granted a new trial. He was again convicted and has brought his case here on exceptions before sentence.

The first assignment of error is directed to the refusal of the court to take from the jury the charge of assault with intent to commit the crime of rape. A motion with this purpose was made by defendant's counsel at the conclusion of the proofs, and was based on the claim that the undisputed evidence showed the defendant did not intend to commit that offense.

The testimony of the girl as to the assault is substantially as follows:

‘And I just went and washed my hands and went over to the towel to wipe my hands, and I had a sore on my elbow and he wanted to put camphor on it, and he went to the cabinet to get the camphor and was going to put it on my elbow, and I told him it didn't need it, and then he went back and put the camphor up, and he came back and put his arms around me and hugged and kissed me and took me into the bedroom; pushed me into the bedroom. I told him to stop and leave me alone, and he wouldn't do it. He wanted me to go upstairs and I told him no. He backed me through the dining room into the bedroom, and pulled the curtain down to the window, and then pulled the curtain to the door and put me on the bed. I told him to stop. He sat me on the side of the bed and pulled up my clothes and put me onto the bed. One arm was around me and he was pulling up my clothes with the other. He unbuttoned my pants, and took them down and got on top of me. He had his private parts out. I felt them on my person. He stayed on top of me about five minutes and then got up and went into the other room. When I got up there was a slimy substance on my clothes and on my person. My pants were down around my feet. I went out into the kitchen. He gave me a dollar bill and told me not to tell his wife because she would think he was an awful man, and then I was crying and he told me not to cry because he didn't hurt me any.’

Counsel contends that this testimony negatives an intent to commit rape; that it shows he had ample opportunity to do so if that had been his intention; that he was not interrupted; that nothing happened to prevent him from doing all he wanted to do; and that therefore he could not have had an intent to do anything more than he actually did. We are unable to agree with this contention. The acts of the defendant as shown by this testimony are convincing evidence of an original intention to commit the crime of rape. It matters not that he did not accomplish his purpose. If in the beginning, or at any time during the assault he had an actual intent to commit a rape, he is guilty of the offense, even though he voluntarily abandoned his purpose. That he did not penetrate her person or attempt to do so, though he had an uninterrupted opportunity, are facts which the jury may consider in determining the question of intent, but they are not conclusive evidence that his purpose was not to go so far as rape. Counsel stresses the fact that he was not frightened away, that the girl was passive, and that he did all he wanted to do. It is a significant fact that when he gave up the assault he had left what the girl describes as a slimy substance upon her person. From this the jury might reasonably infer that, due to an exuberant enthusiasm or overheated passion, his sexual force had been spent before he was able...