People v. Schultz

• Decision Date: 01 April 1927
• Docket Number: No. 149.,149.
• Parties: PEOPLE v. SCHULTZ.
• Court: Michigan Supreme Court

238 Mich. 15

213 N.W. 135

PEOPLE

v.SCHULTZ.

No. 149.

Supreme Court of Michigan.

April 1, 1927.

Exceptions from Circuit Court, Mecosta County; Joseph Barton, Judge.

George Schultz was convicted of assault with intent to rape, and he excepts before sentence. Affirmed.

Argued before the Entire Bench.Fred R. Everett, Pros. Atty., of Big Rapids, for the People.

W. D. Fast, of Big Rapids, for respondent.

SNOW, J.

Defendant was convicted of assault with intent to rape a 14 year old girl named Mary Boatright, who had formerly been at the Coldwater school, and then lived with a family named Johnson. She was not bright, could not read, and was only in the third grade in school. It was while going through the woods on her way home from school that she claims the crime was committed. Such additional facts as are necessary for the consideration of the assignments of error discussed will be stated as we proceed.

1. The information charges the date of the commission of the offense under videlicet on April 15, 1925. The testimony of the girl was to the effect that it was in the fall of 1924. Defendant claims the court should therefore have directed a verdict of not guilty. The claim is without merit. In a like case, People v. Swift, 172 Mich. 473, 138 N. W. 662, it is said:

‘Time was not of the essence of this offense. It could be stated in the information as one time, and the proof might show another; evidence could be given of such an act within the jurisdiction of the court and the statute of limitations, and the act indicated by the evidence could thenceforth be deemed the act charged.’ Page 488 (138 N. W. 668).

By statute an indictment for any offense is not insufficient ‘for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense.’ C. L. 1915, § 15746. See, also, recent case of People v. Whittemore, 230 Mich. 435, 203 N. W. 87, and authorities therein cited; also, 22 R. C. L. p. 1195.

2. Complaint is made of the refusal of the court to instruct the jury as requested that--

‘The evidence is insufficient to show that the defendant intended to commit an assault with intent to commit the crime of rape.’

No such instruction could properly have been given. The record teems with evidence sufficient to carry this to the jury as a question of fact. It would be of no benefit or profit to recite such evidence here.

3. This request to charge was preferred by defendant upon the trial:

‘You are instructed that the testimony taken on the examination before Justice Bennett in September of this year may be used to impeach the complaining witness if you find she made contradictory statements upon this trial.’

Failure to give is alleged as reversible error.

Contradictory testimony of a witness taken at an examination or upon another trial may be used for impeachment purposes, provided the attention of the witness is challenged to it and the witness given the opportunity of explanation. But an examination of this record fails to disclose that the attention of the girl Mary was directed to anything she testified to before the magistrate that would impeach her testimony upon the trial. She was asked if she did not testify at the examination that she was coming home from school through the woods when defendant assaulted her. But she admitted she so testified and insisted that she was in fact coming home from school instead of going to school. She also admitted that her testimony in justice court varied from that upon the trial as to whom she told of the transaction, and when asked as to what she had testified to at the examination relative to what defendant did to her when he laid her down, she did not deny answering as it is claimed she...