State v. Bowe

• Decision Date: 23 July 1928
• Citation: 220 N.W. 843,57 N.D. 89
• Court: North Dakota Supreme Court

220 N.W. 843

57 N.D. 89

STATE OF NORTH DAKOTA, Respondent, v. ALVIN BOWE, Appellant

Supreme Court of North Dakota

July 23, 1928

Appeal from the District Court of Stutsman County Jansonius, J. Defendant was convicted of assault with intent to commit rape, and appeals from the judgment of conviction.

Affirmed.

M C. Freerks and George W. Thorpe, for appellant.

"In order to constitute an assault with intent to commit rape there must be an assault coupled with the purpose of having intercourse with the person assaulted." State v Truitt (Del.) 62 A. 790.

"And in assault with intent to commit rape, the assault and intent must concur as to time." Hudson v. State (Tex. Crim. Rep.) 90 S.W. 177.

"To constitute the crime of assault with intent to commit rape, there are two essential ingredients which must coexist and be established by the evidence beyond a reasonable doubt, before a person can be lawfully found guilty of the crime, and these are, first an assault, and second, an intent to commit the act charged." 22 R.C.L. 1231, citing Liebscher v. State, 95 N.W. 870.

"It is absolutely essential that an assault be established, and mere proof of intent without proof of assault is not sufficient." 22 R.C.L. 1232, citing State v. Neely, 74 N.C. 425.

"The use of a weapon to compel a woman to consent to sexual intercourse is not an assault with intent to commit rape if there is no overt attempt to commit the act itself." Douglas v. State (Ark.) 42 L.R.A.(N.S.) 524.

Russell D. Chase, State's Attorney, and Harry E. Rittgers, Assistant State's Attorney, for respondent.

"Mere defectiveness or inaccuracy in the charge is not necessarily sufficient to justify a reversal. It must be made to appear that the court misstated a rule of law in a substantial particular, and it must appear from an examination of the entire charge, that the misstatement was calculated to mislead the jury in arriving at a verdict upon some question submitted to it. . . . Theoretical or technical error, or error which for other reasons is not calculated to lead the jury to return an erroneous verdict, does not constitute a ground for reversal. State v. Tracy, 34 N.D. 498, 158 N.W. 1069; 17 C.J. 368." State v. Carter, 50 N.D. 270, 195 N.W. 567.

"According to the principles of common-law procedure, no conviction in a criminal case will be reversed for mere nondirection, where no instructions were requested by the accused, unless the record discloses that the jurors were mistaken in the matter of law." 2 Thomp. Trials, 2d ed. § 2339.

"Specific instructions must be asked for. It is, then, a general rule of procedure, subject, in this country, to a few statutory innovations, that mere nondirection, partial or total, is not ground for a new trial, unless specific instructions, good in point of law and appropriate to the evidence were requested and refused." 2 Thomp. Trials, 2d ed. § 2341.

"A failure to give such instruction is not erroneous, in the absence of a request therefor, particularly where the jury are instructed that in order to convict they must be satisfied beyond a reasonable doubt that defendant is guilty." 16 C.J. 984.

"Where the court charged that every essential element of the crime must be proved beyond a reasonable doubt, the failure to charge on the presumption of innocence was not erroneous in the absence of any request therefor." State v. Hayward (Iowa) 133 N.W. 667; State v. Cline (S.D.) 132 N.W. 160.

"While it is error for the court to fail to charge on the law of reasonable doubt, in a felony prosecution, whether requested or not, a mere omission to charge on the presumption of innocence is not error in the absence of a request so to charge." Hutto v. State, 7 Tex.App. 44.

"An overt act is one of the series of minor acts directly involved in the performance of the ultimate act intended." State v. Cruikshank, 13 N.D. 337, 100 N.W. 697.

"An impossibility of a fact may be the very obstruction which made the purposed wrong an attempt instead of a substantive offense." Bishop, Crim. Law, §§ 737 and 753.

"Crime consists of a combination of act and evil intent, detrimental to the public, and sufficient in magnitude for the law's notice." Bishop, Crim. Law, § 726.

"An attempt to commit a crime is an act with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted." Stephen's Dig. Crim. Law, 35.

Pugh, Dist. J. Nuessle, Ch. J., and Burke, Christianson, and Birdzell, JJ., concur. Mr. Justice Burr did not participate, Honorable Thomas H. Pugh, Judge of Sixth District, sitting in his stead.

OPINION

PUGH

From a judgment of conviction on an information charging him with an assault with intent to commit rape and denial of his motion for a new trial, defendant appeals.

It is unnecessary in the decision of this case to set forth the evidence. On his brief and upon oral argument defendant's counsel conceded there is no prejudicial error in the admission of evidence and stated to the court, further, that the verdict of guilty rendered by the jury is substantially supported by the evidence. For a reversal of the judgment, defendant relies solely and entirely upon errors assigned which he alleges occur in the court's instructions to the jury. He insists such errors are prejudicial to the rights of the defendant and require a reversal of the case. We, therefore, deem all assignments of error to be abandoned, save only such as are directed specifically to the court's instructions to the jury.

Defendant attacks the instructions as a whole contending they are misleading, involved and inapplicable to the facts and the issues in the case, in that the instructions with reference to rape, assault and assault with intent to commit rape are incomplete and not a correct exposition of law, and further that the court wholly omitted to instruct relative to the presumption of innocence.

We consider first the instructions given with reference to assault with intent to commit rape. Defendant insists they are not full and complete, in that the elements of the crime charged were not accurately defined to the jury. The particular objection raised by counsel in this connection is that the court did not charge the jury, in effect, that before they could lawfully convict him of the crime charged in the information, they must find beyond a reasonable doubt that the intent to commit rape was concurrent with the assault alleged. He further contends that the jury was misled by reason of the inaccurate definition of rape given the jury by the court. That by reason of these faults, he contends the instructions as a whole are erroneous, misleading and prejudicial.

The instructions must be read and construed as a whole; each part must be considered in connection with others of the series referring to the same subject and connected therewith, and if, when so considered and construed together, they express the law applicable to the particular case, no just ground of complaint exists, even though an isolated and detached clause is, in itself, inaccurate or incomplete and though parts thereof taken separately may be subject to criticism. This proposition has found expression in numerous decisions of this court. State v. Finlayson, 22 N.D. 233, 133 N.W. 298; State v. Reilly, 25 N.D. 339, 141 N.W. 720; State v. Rice, 39 N.D. 597, 168 N.W. 369; State v. McCarty, 47 N.D. 523, 182 N.W. 754; State v. Kerns, 50 N.D. 927, 198 N.W. 698; State v. Gates, 52 N.D. 659, 204 N.W. 350.

After reading the charging part of the information the court used the following language:

"The charge in this case is assault with intent to commit rape. An assault, gentlemen, is any wilful or unlawful attempt or offer, with force or violence to do a corporal hurt to another. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator. To constitute the crime charged in the information, it is not necessary that the crime of rape was accomplished, it is the intent on the part of the defendant to accomplish the act that constitutes the offense. That is, there must be an assault and the assault must be with the intent on the part of the defendant to commit the crime of rape. . . . In assault with intent to rape, the proof must show every ingredient of the crime of rape, except the accomplishment of it. The proof must show beyond a reasonable doubt the unlawful attempt which constitutes an assault with an intention to have carnal knowledge of the female forcibly and against her will. It must show an intention to use such force as may be necessary to accomplish the object. In order to warrant a conviction for assault with intent to commit rape, the state must prove the following facts: That the defendant made an assault upon the woman; that the assault was accomplished with the specific intention to rape; with the specific intention to have carnal knowledge of the woman; to have carnal knowledge of the woman without her consent, and by the use of such force as is sufficient to overcome such resistance as the woman should make." Further, after referring to the several forms of verdict, one of which should be returned, the court used the following language: "Dealing now with the first verdict, or the verdict of guilty as charged in the information of assault with intent to commit rape. In that particular matter, gentlemen of the jury, the intent becomes very material. I have read to you the definition of assault and I don't think that that part of the statute or of the law with reference to this matter needs any further explanation at this time. As you pass upon the evidence in this particular case, gentlemen, it will be necessary for you to pass upon the question of...