State v. Andreason

• Decision Date: 20 June 1927
• Docket Number: 4942
• Parties: STATE, Respondent, v. JOHN ANDREASON, Appellant
• Court: Idaho Supreme Court

257 P. 370

44 Idaho 396

STATE, Respondent, v. JOHN ANDREASON, Appellant

No. 4942

Supreme Court of Idaho

June 20, 1927

CRIMINAL LAW-RAPE-GRAVAMEN OF OFFENSE-EVIDENCE-QUESTION OF INTENT-EVIDENCE SUPPORTS FINDINGS.

1. Gravamen of offense of assault with attempt to commit rape is specific intent with which assault was alleged to have been made.

2. In prosecution for assault with intent to commit rape, question as to intent with which assault was made is one of the facts to be determined by jury.

3. In prosecution for assault with intent to commit rape, evidence on question of intent held sufficient to sustain conviction.

4. Where there was substantial evidence to support finding of jury of specific intent in prosecution for assault with intent to commit rape, supreme court will not be justified in disturbing verdict, even on conflict of evidence.

5. When a confession is offered in evidence, the question whether it was made voluntarily or otherwise is primarily for the determination of trial court.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

John Andreason was convicted for assault with intent to commit rape, and he appeals. Affirmed.

Affirmed.

Walter H. Anderson, for Appellant.

The alleged confession in this case should not have been received in evidence for the reason that it was not voluntarily given. (People v. Thompson, 84 Cal. 598, 24 P. 384; People v. Barric, 49 Cal. 342; 1 Green, Evidence 219, footnotes on pp. 1291, 1292, 1293; Wharton, Crim Evidence, 10th ed.)

The verdict in this case is not supported by the evidence and is contrary to the evidence, and the evidence is insufficient to support the verdict or show the commission of any offense, in that it fails to show the specific intent to commit rape, by force and in spite of resistance. (People v. Brown, 47 Cal. 447; People v. Fleming, 94 Cal. 308, 29 P. 647; Rushton v. State, 58 Fla. 94, 50 So. 486; Lynch v. State (Tex. Cr.), 279 S.W. 271; State v. Massey, 86 N.C. 658, 41 Am. Rep. 478; State v. Hill, 181 N.C. 558, 107 S.E. 140; Commonwealth v. Merrill, 14 Gray (Mass.), 415, 77 Am. Dec. 336; Barr v. People, 113 Ill. 471; Stevens v. People, 158 Ill. 111, 41 N.E. 856; Austin v. State (Miss.), 48 So. 817; Bell v. State, 61 Fla. 6, 54 So. 799; Dina v. State, 46 Tex. Cr. 402, 78 S.W. 229; Anderson v. State, 77 Ark. 37, 90 S.W. 846; Stoker v. State, 93 Tex. Cr. 24, 245 S.W. 444; State v. Perkins, 31 S.D. 447, 141 N.W. 364; State v. Smith, 136 N.C. 684, 49 S.E. 336; State v. Riseling, 186 Mo. 521, 85 S.W. 372; Hatcher v. State, 99 Tex. Cr. 556, 270 S.W. 1024.)

Frank L. Stephan, Attorney General, and Leon M. Fisk and John W. Cramer, Assistant Attorneys General, for Respondent.

In an assault with intent to rape the question of intent is a fact for the jury to determine. (State v. Beard, 6 Idaho 614; State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; People v. Makovicki, 316 Ill. 407, 147 N.E. 393; People v. Onessimo, 65 Cal.App. 341, 224 P. 101; People v. Mit Singh, 59 Cal.App. 64, 209 P. 1013; People v. Bowman, 6 Cal.App. 749, 93 P. 198; People v. Norrington, 55 Cal.App. 103, 202 P. 932.)

The verdict of the jury will not be disturbed where there is any competent evidence to support it. (State v. Beard, supra; State v. Neil, supra; People v. Norrington, supra; People v. Onessimo, supra.)

The evidence is sufficient to sustain the verdict of the jury. (State v. Neil, supra; and authorities cited above.)

The question of whether or not a confession is voluntary is primarily for the trial judge and his decision will not be disturbed unless a clear abuse of discretion is shown. (People v. Haney, 46 Cal.App. 317, 189 P. 338; People v. Grafft, 61 Cal.App. 7, 214 P. 273; People v. Castello, 194 Cal. 595, 229 P. 855; Commonwealth v. Hudson, 185 Mass. 402, 70 N.E. 436; State v. Allison, 24 S.D. 622, 124 N.W. 747.)

An adjuration to tell the truth does not render a confession inadmissible. (Huffman v. State, 130 Ala. 89, 30 So. 394; Jackson v. State, 29 Tex. Civ. App. 458, 16 S.W. 247; State v. Armstrong, 167 Mo. 257, 66 S.W. 961; State v. Allison, 24 S.D. 622, 124 N.W. 747; Hintz v. State, 125 Wis. 405, 104 N.W. 110; Wigmore on Evidence, sec. 832; People v. Haney, 46 Cal.App. 317, 189 P. 338; People v. O'Brien, 53 Cal.App. 754, 200 P. 766; Reagan v. People, 49 Colo. 316, 112 P. 785.)

BUDGE, J. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was convicted of the crime of assault with intent to commit rape, and he appeals from the judgment, assigning as error insufficiency of the evidence to support the verdict; that the verdict is contrary to the evidence, and the admission in evidence of an alleged confession made by appellant.

The particulars in which the evidence is claimed to be insufficient, and wherein the verdict is alleged to be contrary to the evidence, are that the testimony of the prosecuting witness is to the effect that she fought off appellant's attack upon her to the limit of her resistance and to the extent of becoming completely exhausted, after which appellant desisted in his efforts and allowed her to get up and go, all of which, appellant contends, fails to show an intent to have sexual intercourse with the prosecuting witness by use of any and all force necessary to accomplish that purpose.

The record evidence as to the acts leading up to and surrounding the commission of the offense charged shows, in brief, that the prosecuting witness and appellant were together on the evening of June 26, 1925, the date on which the offense was alleged to have been committed, and that after getting out of a car in which they had been riding they walked to a point near a bridge, when appellant began pulling the prosecuting witness toward him and in the girl's attempt to draw herself away from his grasp they fell on the ground. A struggle ensued during which appellant placed his hand over the girl's mouth when she attempted to scream, and while holding her on the ground, raised her dress. After she had managed to get up several times and appellant had reached for her again, the prosecuting witness pushed appellant away and ran to a house near by where she saw a light. It is in evidence that when she reached the house one of her arms was bleeding, her dress was torn, and she was bereft of one shoe, later found at the place of the assault. The prosecuting witness testified that she was completely exhausted from the scuffle and that perhaps she could not have gotten away if appellant had not wanted to let her go.

The gravamen of the offense charged against appellant is the specific intent with which the assault, admittedly proven, was alleged to have been made; that is, that appellant attacked the person of the prosecuting witness with the aim, design and purpose of having carnal knowledge of her. The question of intent is one of fact to be determined by the jury. (State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; People v. Makovicki, 316 Ill. 407, 147 N.E. 393; People v. Mit Singh, 59 Cal.App. 64, 209 P. 1013; People v. Bowman, 6 Cal.App. 749, 93 P. 198.) Unless it can be said that the facts proven afford no reasonable ground for the inference drawn by the jury from the outward acts and conduct of the accused herein, as well as from the surrounding circumstances, we would not be justified in disturbing the verdict upon the ground of the insufficiency of the evidence to show a felonious intent. (People v. Onessimo, 65 Cal.App. 341, 224 P. 101.)

Appellant conceives the law to require an intent to accomplish the act in spite of any resistance that the victim may put forth. Such, we think, is a misconception, or at least an overemphasis, as to the necessity for resistance on the part of the woman attacked. "The importance of resistance by the woman is simply to show two elements of the crime--the assailant's intent to use force in order to have carnal knowledge, and the woman's nonconsent." People v. Norrington, 55 Cal.App. 103, 202 P. 932, quoting with approval from the Idaho case of State v. Neil, supra, wherein it was said:

"A large number of authorities are cited by counsel for appellant to the effect that the state must show in such cases that the female 'showed the utmost reluctance and used the utmost resistance.' (Devoy v. State 122 Wis. 148, 99 N.W. 455.) To our minds the trouble with a number of these authorities is that they reverse the order of the inquiry; they go about inquiring into the kind, character and nature of the fight put up by the woman, rather than the nature of the assault and evident and manifest purpose and intent of the assailant. For the purpose of reaching the conclusions announced in some of these cases it is necessary to assume that, in the first place, a man has a right to approach a woman, lay hold on her person, take indecent liberties with her, and that unless she 'kicks, bites, scratches and screams (People v....