People v. Visel, 121.

• Decision Date: 03 March 1936
• Docket Number: No. 121.,121.
• Citation: 275 Mich. 77,265 N.W. 781
• Parties: PEOPLE v. VISEL.
• Court: Michigan Supreme Court

275 Mich. 77

265 N.W. 781

PEOPLE

v.VISEL.

No. 121.

Supreme Court of Michigan.

March 3, 1936.

William Visel was convicted of an assault on a female child, thirteen years of age, and of taking improper liberties with her person, and he appeals.

Reversed and new trial ordered.Appeal from Circuit Court, Washtenaw County; George W. Sample, judge.

Argued before the Entire Bench, except TOY, J.

Andrew J. Sawyer and Jacob F. Fahrner, both of Ann Arbor, for appellant.

David H. Crowley, Atty. Gen., Edmund E. Shepherd, Asst. Atty. Gen., and Albert J. Rapp, Pros. Atty., of Ann Arbor, for the People.

WIEST, Justice.

Defendant was convicted of an assault upon a girl, thirteen years of age, and taking indecent and improper liberties with her person, and prosecutes review by appeal.

Under the conviction, the lesser offense of assault was merged in the major crime. The court instructed the jury:

‘* * * I imagine that I can believe that a man would put his arm around a child, a girl of the age of Florence Cotton, with intent to take indecent liberties. He is guilty the minute he touches her, of the offense. It rests with his intent. What does he intend to do? These crimes are effected by beginning rather subtly and approaching the worst degree of the crime later on. In my estimation, a man who has the wrong intent may start with even the placing of his hand on the shoulder of a female child, not necessarily around her. If he has the intent to follow these actions up, there is no particular place where it begins, if he has the intent to accomplish something that is vilely wrong as against this particular female, there is no particular place where the touching of her or the assault itself becomes indecent liberties, becomes the crime of indecent liberties, if it is just a sequence of what he begins in the first place and intends to follow up. It might even be the laying of a finger on her, if the intent is to follow it up. It is necessary to touch the body in order to bring this kind of a crime within the statute. I was going to say to this jury, and I don't have to say it, that any man forty-four years of age, the father of seven children, three of whom are married, who would go to bed as this man admits he did, with this girl, that that might take care of the question of assault in itself, but I don't have to go that far. If this man laid his hands on this little girl, laid a hand on her shoulder, or a finger on her cheek, or an arm around her waist, with the intent to follow his act up, he is guilty of taking indecent liberties with this female child.’

The instruction was erroneous and highly prejudicial in that it permitted a verdict of guilty of taking indecent and improper liberties upon a finding of assault with intent to commit that crime.

An assault or an assault and battery is necessarily involved in the crime of taking indecent and improper liberties with a female child under the age of fourteen years. People v. Sanford, 149 Mich. 266, 112 N.W. 910;People v. Dupree, 175 Mich. 632, 141 N.W. 672;People v. Place, 226 Mich. 212, 197 N.W. 513.

The major crime of...