Prindeville v. People of State

• Decision Date: 30 April 1866
• Citation: 1866 WL 4667,42 Ill. 217
• Parties: JOHN PRINDEVILLEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

42 Ill. 217

1866 WL 4667 (Ill.)

JOHN PRINDEVILLE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Recorder's Court of Chicago; the Hon. EVERT VAN BUREN, Judge, presiding.

The opinion of the court contains a statement of the case.

Messrs. HERVEY, ANTHONY & GALT, for the plaintiff in error, contended, that an indictment for having committed a rape will not sustain a conviction for an assault with intent to commit a rape, citing Carpenter v. The People, 4 Scam. 199; Wharton's Criminal Law, pp. 193, 194, and 522; Dinkey v. Commonwealth, 5 Harris, 126; Buck v. State, 2 Harris & Johns. 126; 1 Chitty's Criminal Law, 252-639.

Mr. CHARLES H. REED, State's attorney, for the people, upon the general doctrine that a conviction for the lesser offense may be sustained under an indictment for the greater, cited Beckwith v. The People, 26 Ill. 500; Carpenter v. The People, 4 Scam. 197; Stewart v. The State, 5 Ohio, 145; Corwith v. Griffin, 21 Pick. 525; The People v. White, 22 Wend. 176; 1 Phil. Ev. (7 Lond. ed.) 202; 1 Ch. Crim. Law, 638; White et al. v. The People, 32 N. Y. 469; Rex v. Hunt, 2 Campb. 583; People v. Jackson, 3 Hill, 92; State v. Stedman, 7 Porter (Ala.) 495; Dedieu v. The People, 22 N. Y. pp. 183 and 184; Phil. Ev. Cowen and Hill's and Edward's notes, vol. i. p. 832, note 5, and cases there cited.

In Com. v. Cooper, 15 Mass., which was an indictment for rape, the court held that the defendant might be lawfully convicted of an assault with intent to commit rape, upon the ground that it was a lower offense. In the case of State v. Harper, 7 Conn. 54, the defendant was indicted for an assault with intent to commit rape, and the evidence showed that a rape was actually committed. The defendant was found guilty as charged in the indictment. In the case of State v. Parmelee, 9 Conn. 360, the court refer to the case last cited from the 7th Conn. with approbation, saying that: “So, in an indictment for rape, he may be convicted of an attempt to commit a rape.” Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

In this case, plaintiff in error was indicted in the Recorder's Court of Chicago for a rape. He interposed the plea of not guilty. A trial was had, resulting in a verdict of guilty of an assault with intent to commit a rape, and fixing the term of his confinement in the penitentiary at one year. A motion for a new trial was overruled and judgment was rendered on the verdict, and defendant below prosecutes this writ of error to reverse that judgment.

It is insisted, that plaintiff in error having been indicted for a rape, he should, if not guilty of that crime, have been found not guilty and acquitted. That the two offenses are separate and distinct crimes, neither embracing the other; and, to convict of an assault with intent to commit a rape, the accused should be regularly indicted and tried for that specific crime That the crime of rape is not of that class of public offenses which includes the crime of assault with intent to commit a rape, it not being a crime of a lower grade.

The rule is laid down by Mr. Chitty, in his treatise on criminal law, vol. 1, p. 638, that, “When the accusation includes an offense of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious. Thus, upon an indictment for burglariously stealing, the prisoner may be convicted of theft, and acquitted of the nocturnal entry; upon an indictment for murder, he may be convicted of manslaughter; on an indictment for stabbing, he may be acquitted of the statutable offense, and found guilty of felonious homicide; on an indictment for stealing privately from the person, he may be found guilty of larceny only; on an indictment for grand, the offense may be reduced to petit, larceny; robbery may be softened into felonious theft; and petit treason lessened to murder or any description of less atrocious homicide; and, on an indictment found on a statute, the defendant may be found guilty at common law.”

He again says: “The only exception to this rule seems to be, when the prisoner, by being originally indicted for a different offense, would be deprived of any advantage which he would otherwise be entitled to claim; in which the prosecutor is not permitted to oppress the defendant by altering the mode of the proceedings. A defendant, therefore, cannot be found guilty of a misdemeanor on an indictment for felony, because he would by that means lose the benefit of having a copy of the indictment, a special jury and making his full defense by counsel. * * * Upon the same principle, no one can be convicted of petit treason on an indictment for a common murder, because he would thereby lose the benefit of the larger number of peremptory challenges; but in an indictment for the former he may be properly convicted of the latter, because he thereby enjoys a higher benefit, instead of losing any privilege to which he may be entitled.”

It is manifest, that the intent as well as the assault are embraced in the crime of rape. If either is wanting, the crime could not be complete. And, from all of the authorities, we are satisfied, that the general rule is, that, where a higher and more atrocious crime fully embraces all of the ingredients of a lesser offense, and when the evidence requires it, the jury may convict of the latter. Where, to convict of the higher offense, the prosecutor must prove every fact necessary to constitute the smaller offense, together with the additional facts which make it the higher offense, before he can have a conviction, then the jury, if the facts warrant it, may convict of the less offense. And no case occurs to us which...