State v. Bowe

• Decision Date: 23 July 1928
• Docket Number: Cr. No. 4.
• Citation: 220 N.W. 843,57 N.D. 89
• Parties: STATE v. BOWE.
• Court: North Dakota Supreme Court

57 N.D. 89

220 N.W. 843

STATE

v.BOWE.

Cr. No. 4.

Supreme Court of North Dakota.

July 23, 1928.

Syllabus by the Court.

Instructions given the jury by the court in the trial of a criminal action must be read and construed as a whole. Each part or paragraph must be considered in connection with others of a 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.

Where, on the trial of a criminal case, the instructions to the jury cover generally the elementsof the offense charged in the information and the issues raised at the trial, if the defendant desires more comprehensive instructions upon any phase of the case, he should submit written instructions to the court, accompanied by proper request that they be given. Failing so to do, he cannot predicate error upon the instructions given, where they present the issues to the jury fairly under a substantially correct statement of the law governing the case, and which guard the substantial rights of defendant.

“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.” State v. Carter, 50 N. D. 270, 195 N. W. 567.

“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 a reversal.” Id.

While it is reversible error to refuse, on request, proper instructions on the presumption of innocence, in the absence of request therefor, accused cannot complain of an omission to so instruct.

Instructions given the jury, defining the term “reasonable doubt” and the application thereof to the evidence, examined, and held to be fair and accurate.

Upon reading and considering as a whole the instructions to the jury in the case, it is held they fairly present the issues in the case, cover generally the elements of the offense charged in the information, and guard the substantial rights of the defendant.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Alvin Bowe was convicted of assault with intent to commit rape, and he appeals. Affirmed.

M. C. Freerks, of Jamestown, and George W. Thorp, of Fargo, for appellant.

Russell D. Chase, State's Atty., and Harry E. Rittgers, Asst. State's Atty., both of Jamestown, for the State.

PUGH, District Judge.

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.

[1] 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.

[7] 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 willful 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 knowleldge 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 whether or not there was an assault, and, if you find to your satisfaction beyond a reasonable doubt that there was an assault, to pass upon the manner in which the same was committed and the intent with which the same was committed, and to pass upon the question as to whether, if the defendant did anything, the intent with which it was done. * * * In this case, if you find from the evidence beyond a reasonable doubt that the defendant, Alvin Bowe, assaulted the complaining witness as charged in the information, but you entertain a reasonable doubt that the intent with which the assault was committed was rape, then your verdict should be guilt of assault only. You are instructed that the intent with which an act is done is an act or emotion of the mind, seldom, if ever, capable of direct proof, but is to be derived (arrived) at by such just and reasonable deductions or inferences from the acts and facts proved, as the guarded judgment of a cautious man would ordinarily draw therefrom. * * * If the defendant committed an assault upon the complaining witness, it will be your duty from the evidence to determine his intent in so doing by the surrounding circumstances and all the evidence in the case before you, which tends to show intent, and determine from all the evidence whether or not the assault was committed, was committed with the intent to commit rape.”

[2] No request for further or more definite instructions were submitted to the court by counsel, nor did he in any manner direct the court's attention to any inaccuracies in the statement of the law governing the case. If defendant desired a more comprehensive instruction upon this phase of the case, he should have submitted such instruction to the court with request that it be given. Failing to do so, he cannot now predicate error upon the instructions given, if the instructions as given present the issues in the case fairly, under a substantially correct statement of the law, and guard the...