Rose v. State
| Decision Date | 20 November 1925 |
| Docket Number | A-5091. |
| Citation | 240 P. 754,32 Okla.Crim. 294 |
| Parties | ROSE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In order to convict a defendant of an attempt to commit rape upon a female above the age of 18 years, a specific intent to rape by the use of force to accomplish such purpose notwithstanding the resistance of the female, coupled with an overt act, must be proven.
Where the proof shows no more than solicitation and a technical assault and battery in urging such solicitation, it is insufficient to sustain a conviction for attempt to rape.
Appeal from District Court, Grady County; M. W. Pugh, Judge.
Bill Rose was convicted of attempt to rape, and appeals. Reversed and remanded.
A. L Herr, of Chickasha, for plaintiff in error.
George F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
From a conviction in the district court of Grady county for an attempt to rape, the plaintiff in error, hereinafter called defendant, has appealed.
The information is not clear whether the pleader sought to charge the defendant with an attempt to rape or of an assault with intent to commit rape. The allegations are probably sufficient under either statute, but the trial court evidently took the view that the information charged an attempt to rape, and instructed the jury upon the law of that offense. The verdict of the jury is general, finding the defendant guilty of the crime charged, and fixing his punishment at one year in the penitentiary.
The record discloses a state of facts about as follows: Emily Balch, an unmarried female, 19 years of age, was employed at the Geronimo Hotel. On the date of the offense charged, she left her place of employment to go to her home where she resided, but missed the street car she intended to take, and the defendant, a married man who was a service car driver proffered to take her home. She thereupon got in the car, and the defendant instead of taking her home, over her protest drove out of town, and, upon her insisting that he take her home, defendant took hold of her arm and put his hand on her breast, and in the course of the drive attempted to put his arm around the prosecutrix and put his hands under her dress, but, on the refusal of the prosecutrix to permit any familiarity, he desisted. The prosecutrix made no outcry. Finally the defendant stopped his car and got out, and the prosecutrix then got...
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