State v. Crofutt, 9514

• Court: South Dakota Supreme Court
• Writing for the Court: RUDOLPH
• Citation: State v. Crofutt, 76 S.D. 77, 72 N.W.2d 435 (S.D. 1955)
• Decision Date: 20 October 1955
• Docket Number: No. 9514,9514
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Dale CROFUTT, Defendant and Appellant.

Page 435

72 N.W.2d 435

76 S.D. 77

STATE of South Dakota, Plaintiff and Respondent, v. Dale CROFUTT, Defendant and Appellant.

No. 9514.

Supreme Court of South Dakota.

Oct. 20, 1955.

M. E. Miller, Lake Andes, for defendant and appellant.

Phil Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., for plaintiff and respondent.

RUDOLPH, Presiding Judge.

Defendant was convicted of rape in the first degree and has appealed.

The female upon which the alleged rape was committed was not under the age of ten years which makes the basis of the conviction a rape accomplished by means of force overcoming resistance. SDC 13.2803.

The defendant requested the trial court to instruct the jury that the crime of assault with the intent to commit rape is included in the offense charged and if the jury should fail to find the defendant guilty of rape in the first degree, it could, if the evidence warranted, bring in a verdict of guilty of an assault with intent to commit rape. The trial court refused to instruct as requested.

Assault with intent to commit rape is not a degree of the crime of rape, but is a crime as defined by SDC 13.2303. Under the law as established in this state it is incumbent upon the trial court to instruct the jury, if requested, upon a lesser offense included in the offense charged if the evidence warrants a conviction upon the included offense. SDC 34.3669 is as follows:

'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense charged.'

State v. Kapelino, 20 S.D. 591, 108 N.W. 335; State v. Vey, 21 S.D. 612, 114 N.W. 719; State v. Vierck, 23 S.D. 166, 120 N.W. 1098. Assault with intent to commit rape is an offense included in the charge of rape in the first degree. 75 C.J.S., Rape, Sec. 82, p. 588. An assault with intent to rape is an incompleted rape, so that if accused had consummated his intent he would be guilty of rape. Thus the crime is committed when every element of the crime of rape except the element of penetration is present. 75 C.J.S., Rape, Sec. 20(b), p. 486.

The question presented is whether the evidence in this case under any reasonable view warrants a conviction of an assault with intent to commit rape. The trial judge was apparently of the view that the evidence established that the defendant was either guilty of the crime charged or not guilty of any offense. But we are inclined to the view that the jury could reasonably conclude that the state had failed to prove beyond a reasonable doubt the element of penetration. The evidence is as follows: The name of the prosecutrix is Donna. Donna was ten years of age at the time of the offense and at the time of trial. Because of Donna's age, the trial court permitted the state's attorney to ask leading questions, and most of the girl's testimony consisted of 'yes' and 'no' answers to questions framed by the attorney. The substance of Donna's testimony is that the defendant came to her home, where apparently defendant was living, about five o'clock in the afternoon and told Donna to get supper for the younger children. He told the other children to leave the house and hooked the screen door. He then took Donna down on the floor and committed the act...