Ross v. State

• Decision Date: 20 January 1908
• Citation: 93 P. 299,16 Wyo. 285
• Parties: ROSS v. STATE
• Court: Wyoming Supreme Court

93 P. 299

16 Wyo. 285

ROSS v. STATE

Supreme Court of Wyoming

January 20, 1908

Rehearing Denied March 9, 1908, Reported at: 16 Wyo. 285 at 306.

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

Assault with intent to commit rape upon a girl under the statutory age of consent. The defendant, Charles Ross, was convicted and prosecuted error. The facts are stated in the opinion.

Affirmed.

S. P Cadle, for plaintiff in error.

The evidence is not sufficient to sustain the verdict. The instruction that an attempt to carnally know a female child under the age of six years, whether with or without her consent, is an attempt to do a violent injury to such child was error. There is no such crime in this state. The crime of rape implies force and resistance; two things must have concurred in order to convict the defendant: First, there must have been an assault, coupled with an intent to commit rape upon the person assaulted. An assault implies force on one side and repulsion, or at least want of consent, upon the other, and there was not a scintilla of evidence to show any force used or any resistance offered, and for this reason the motion to direct a verdict for defendant should have been sustained. (State v. Smith, 12 O. , 466; State v. Pickett, 11 Nev. 255; State v. Hagerman, 47 Iowa 151; State v. Canada, 27 N.W. 288; State v. Kendall, 34 N.W. 844; State v. Fleming (Cal.), 29 P. 647.)

The refusal to instruct that defendant might be found guilty of assault, if the intent to rape was not found to be proven, when such instruction was requested, was error. There is no evidence in the case of actual violence. If the defendant was guilty at all there must have been an actual assault, and we maintain that this question should have been submitted to the jury; had there been any evidence of actual violence to the person of the child, then it might have been proper to refuse to submit the question of assault. (State v. Vinsant, 49 Iowa 241; State v. Pennell, 8 N.W. 686; State v. Trusty, 92 N.W. 677; State v. Egbert, 101 N.W. 191.) The crime of assault with intent to commit rape is not created or defined by the statute. A prosecution for such a crime must come under Section 4956. It may be conceded that if defendant had used force and violence upon a female over the age of consent, with the intent to ravish and carnally know her, the crime of felonious assault would have been committed, and he might have been convicted of such felonious assault. There being no such crime as assault with intent to commit rape known in this state, it cannot be assumed that the pleader intended to charge such an offense. The information, omitting all reference to the felony, is complete under Section 4957, charging an assault. It is a rule in criminal pleading that the indictment will be sufficient if the crime is charged substantially in the language of the statute. Applying this rule to the case at bar, we have every ingredient of Section 4957 included in the information, to which is added the charge with intent to commit a felony.

It is contended by the defendant that these words, giving the information its true meaning, are merely surplusage. They might have been omitted from the information and the crime of assault would have been completely charged. The words constituting an assault were wholly unnecessary in an information under Section 4956. Defendant, therefore, contends that the court erred in each instruction given to the jury in which a felonious assault was submitted for their consideration. The instruction should have been that if the jury found the defendant guilty, it should be only of assault. The extreme youth of the girl suggests the possibility of the defendant having committed a violent injury upon her. But, assume that she was sixteen years of age, and willing to submit to defendant, such would not necessarily be true. Yet the statute makes no distinction, so far as statutory rape is concerned, between a child of twelve and a more mature woman of seventeen. The court would not employ the fiction necessary to hold that preparation to have intercourse with a woman seventeen years of age, with her consent, was an assault with intent to commit a violent injury upon her. And yet that is necessary to constitute an assault within the definition of Section 4957. The statement of the above proposition is conclusive that the intent of the legislature was not to provide punishment for the offense, for which the defendant was convicted. Assault, whether we adopt the meaning approved in State v. Wyatt, 41 N.W. 31; Hayes v. People, 1 Hill, 351; State v. Godfrey, 20 P. 625; List v. Miner, 49 A. 856; Prince v. Riddge, 66 N. Y. Supreme, 454; Lane v. The State, 4 So., 730; and many others, or the definition embraced in Section 4957, implies force and not consent. By no fiction of the law will consent be made to mean force. Many states, including Wyoming, have made improper relations with a female, under a certain age, with her consent, a crime, and some statutes have called it rape. The name given it by the statute adds nothing to the crime, and, in no sense, brings it within the definition employed to define the offense at common law. There is no evidence or thought of resistance in this case; in fact the child had not the slightest conception of the purpose or intention of the defendant. If the testimony of the State be conceded to be true, the defendant may have had the present ability to do a violent injury upon the girl, but no force whatever was employed or attempted. Therefore, no assault was committed. We do not mean to say that the common law offense may not be committed upon a female under the age of consent. The same force might be used upon such a person as an older one, but we do say, and the authorities sustain the contention, that there can be no assault, or an assault with intent to commit the crime, so long as the offender offers no force, and the female no physical resistance.

The courts uniformly make a distinction between an attempt and assault with the intention of committing a crime, and the mere preparation to commit a crime without any act having been done toward the commission of the offense. (State v. Long, 37 A. S. R., 505; Johnson v. State, 43 N.W. 425; Fox v. State, 34 Ohio St. 377; Kelly v. Com., 1 Grant, 484 (Pa.); Franklin v. State, 29 S.W. 1088; Patrick v. People, 24 N.E. 619; People v. Youngs, 31 N.W. 114; People v. Webb, 86 N.W. 406.) As charged in the information, the attempt to commit a violent injury consisted only of the intention of the defendant to carnally know the girl. The information was demurrable, but as it charged no crime whatever, the court erred in overruling defendant's motion for a verdict, and in giving each instruction submitted to the jury. As to the error in the instructions we cite, in addition to the others, State v. Krum, 28 N.W. 278.

W. E. Mullen, Attorney General, for the State.

Defects in the form of an indictment or information, or in the manner in which the offense is charged, may be met by motion to quash. (R. S., 5322; Wilbur v. Ter., 3 Wyo. 268; Koppala v. State, 89 P. 576.) Or by demurrer, when the facts stated in the indictment or information do not constitute an offense. (R. S., 5324.) Defects which may be excepted to by motion to quash or plea in abatement, will be taken to have been waived by demurring, pleading in bar, or not guilty. (R. S., 5326; Wilbur v. Ter., supra; Tway v. State, 7 Wyo. 74; Koppala v. State, supra.) A motion in arrest may be granted for want of jurisdiction or when the facts stated do not constitute an offense. (R. S., 5418.) No exception was taken by either of the methods indicated. And there is no apparent reason why exceptions of the kind should have been taken. The information was exceptionally well prepared and clearly sufficient. Counsel displays a misconception of the object and intent of Section 4956, Revised Statutes. "Felonious assault" is not made a specific offense by the section, and any assault and battery with intent to commit any offense enumerated as a felony by statute, comes within its provisions. An information which charges assault, or assault and battery, in the language of the section defining either of them, followed by an averment of intent at the time, to commit a felony, describing the felony in the language of the section defining it, is good. (Bryant v. State, 5 Wyo. 376.) That the information here charges an assault, including all of the ingredients of that offense as defined by statute, and also charges a felonious intent to commit statutory rape, setting forth all of the ingredients of that offense as defined by statute, there can be no question. Counsel has erroneously assumed that an offense of this character must be charged under some specific section of the statutes, whereas, the information relates to three separate and distinct sections of the statute. (Secs. 4956, 4857, 4864, R. S. 1899.) These statutes, taken from Indiana, had, at the time of their adoption, been construed by the highest court of that state, and the practice with reference to their application to cases of this character was well settled. Under a well established rule, the construction given them by the Indiana court was likewise adopted here. In that state indictments similar to the one here are approved. (Dooley v. State, 28 Ind. 239; Greer v. State, 50 Ind.; McGuire v. State, 50 Ind. 284; Shaggs v. State, 108 Ind. 853; Polson v. State, 137 Ind. 525; State v. Duggin, 146 Ind. 427.)

The offense of assault, under the statute, is not the actual commission of a violent injury on the person of another, but an attempt to do so. Just what acts would constitute an "attempt" or a "violent injury" are questions of fact...