State v. Garney

• Decision Date: 22 March 1928
• Docket Number: 5178
• Citation: 265 P. 668,45 Idaho 768
• Parties: STATE, Respondent, v. JOE GARNEY, Appellant
• Court: Idaho Supreme Court

265 P. 668

45 Idaho 768

STATE, Respondent, v. JOE GARNEY, Appellant

No. 5178

Supreme Court of Idaho

March 22, 1928

CRIMINAL LAW-RAPE-FEMALE UNDER AGE OF CONSENT-CONVICTION OF LESSER OFFENSE - CORROBORATION - "CONFESSION" - "ADMISSION"-LEADING QUESTIONS-PROOF OF OTHER OFFENSES.

1. Conviction of assault with intent to rape female under eighteen years of age may, in view of C. S., sec. 8997, be had, in prosecution for statutory rape under sec. 8262, in absence of allegations of force or violence in the information, since prosecutrix cannot give her consent.

2. In prosecution for statutory rape, statement of defendant to sheriff that he wanted to plead guilty, introduced to corroborate prosecutrix, held admissible as an admission without showing it was voluntarily made, difference between a "confession" and "admission" being that a "confession" is an outright acknowledgment in express terms that maker thereof is guilty, while an "admission" is a statement from which guilt may be inferred.

3. Rule requiring a showing that a confession was voluntary and without promise of immunity or reward does not apply to admissions.

4. Since under C. S., sec. 8032, trial court may within its sound discretion, under special circumstances, permit prosecuting attorney to ask leading questions, his rulings thereon will not be disturbed, in absence of abuse of discretion.

5. In prosecution under C. S., sec. 8262, for statutory rape, on female under eighteen years of age, refusal to instruct that defendant might be found guilty of simple assault held error.

6. In prosecution for statutory rape, evidence of conversation between prosecutrix and her aunt, three weeks after alleged offense, in which prosecutrix admitted having sexual intercourse with defendant, was inadmissible, fact that information was elicited from witness by leading questions not removing objectionable features of evidence.

7. In rape prosecutions, it may be shown that prosecutrix made complaint of outrage soon after its commission, but details of conversation and name of person accused are inadmissible.

8. In prosecution for statutory rape, testimony of witness of alleged assault by defendant on her, not linked with offense for which defendant was on trial, was inadmissible and prejudicial.

9. When a man is put on trial for one offense, he is to be convicted if at all, on evidence showing him guilty of that offense alone, and ordinarily proof of his guilt of other offenses not connected with offense charged, must be excluded.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Conviction of assault with intent to commit rape. Reversed and remanded.

Reversed and remanded.

W. A. Ricks, for Appellant.

A charge of statutory rape does not include the offense of assault with intent to commit rape in the absence of essential allegations in the information. (People v. Akens, 25 Cal.App. 373, 143 P. 795; State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754; In re McLeod, 23 Idaho 257, 128 P. 1106, 43 L. R. A., N. S., 813.)

Details of alleged rape and name of person charged are not admissible, though complaint of prosecutrix is admissible. (State v. Fowler, 13 Idaho 317, 89 P. 757; People v. Cappaala, 324 Ill. 11, 154 N.E. 451; Stevens v. People, 158 Ill. 111, 41 N.E. 856; State v. Matson, 120 Ore. 666, 253 P. 527.)

The defendant cannot be convicted on the uncorroborated testimony of the prosecutrix. (State v. Larsen, 44 Idaho 270, 256 P. 107; State v. Short, 39 Idaho 446, 228 P. 274; State v. Hines, 43 Idaho 713, 254 P. 217.)

Evidence of commission of accused of offense similar to that charged is not admissible to prove offense charged. (State v. Wheeler, 41 Idaho 212, 238 P. 312; Paine v. United States, 7 F.2d 263; Davis v. State, 213 Ala. 541, 105 So. 677; People v. Goldman, 318 Ill. 77, 41 A. L. R. 461, 148 N.E. 873; Abbott v. State, 113 Neb. 517, 204 N.W. 74, 206 N.W. 153; State v. Fowler, supra.)

Confessions are competent evidence only when they are voluntarily made. (People v. Fox, 319 Ill. 606, 150 N.E. 347; People v. Sweeney, 304 Ill. 502, 136 N.E. 687; People v. Ziderowski, 325 Ill. 232, 156 N.E. 274; State v. Mason, 4 Idaho 63, 43 P. 63.)

Simple assault is included in the crime of assault with intent to commit rape. (Meade v. Commonwealth, 214 Ky. 88, 282 S.W. 781; Tayrien v. State (Okla. Or.), 242 P. 1061; Teagarden v. State (Okla. Cr.), 244 P. 63; Maddox v. State (Okla. Cr.), 254 P. 753; Adams v. Commonwealth, 219 Ky. 711, 294 S.W. 151.)

The rule requiring corroboration applies to rape, attempt to commit rape and assault with intent to commit rape. There is absolutely no reason why the rule in the case of State v. Hines, supra, requiring corroboration, should not be applied to cases of assault with intent to commit rape.

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

A charge of statutory rape included the offense of assault with intent to commit rape. (22 R. C. L. 1233; 33 Cyc. 1434; People v. Babcock, 160 Cal. 537, 117 P. 549; People v. Verdegreen, 106 Cal. 211, 46 Am. St. 234, 39 P. 607; State v. McLeavy, 157 Minn. 408, 196 N.W. 645; Pittman v. State, 8 Okla. Cr. 58, 126 P. 696; State v. Blythe, 20 Utah 378, 58 P. 1108; Snyder v. State, 92 Ohio St. 167, 110 N.E. 644.)

Where a female is under the age of consent there may be an assault to commit rape notwithstanding her actual consent. It is not necessary to allege in the information that force was used where the female assaulted with intent to commit rape was under the age of consent. (People v. Parker, 74 Cal.App. 540, 241 P. 401; Gordon v. State, 177 Ind. 689, 98 N.E. 627.)

The prosecutrix need not be corroborated in a case of assault with intent to commit rape. (Fields v. State, 2 Ga.App. 41, 58 S.E. 327; Duckett v. State, 68 Tex. Cr. 331, 150 S.W. 1177; People v. Norrington, 55 Cal.App. 103, 202 P. 932.)

The question of whether or not leading questions are permissible in the trial of a case rests primarily within the discretion of the trial court. (State v. Simes, 12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 914; McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478.)

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

OPINION

BUDGE, J.

Appellant was charged with the crime of rape, committed upon a female under the age of eighteen years, and convicted of assault with intent to commit rape. He prosecutes this appeal from the judgment of conviction and from an order overruling a motion for new trial.

It is contended that upon a charge of rape, a conviction of assault with intent to commit rape cannot be had in the absence of allegations of force or violence in the information. Under the statute defining rape in this state (C. S., sec. 8262) it is immaterial, in a case where the female is under the age of eighteen years, whether the act be accomplished by force or violence; she cannot give her consent, and the law resists for her. It seems entirely consistent, therefore, to hold that, if the crime of assault with intent to commit rape is an offense included within the crime of rape, and we are of opinion that it is, there is no necessity of charging the commission of the higher crime, against a female under the age of eighteen years, with force or violence, in order to permit the jury to find the defendant guilty of the lesser offense. (C. S., sec. 8997.) The rule is stated in State v. Blythe, 20 Utah 378, 58 P. 1108, as follows:

"Nor did the court err in charging the jury that the defendant might be convicted of an assault with intent to commit rape. The information charged the defendant with the specific offense of rape. That charge necessarily included an assault with intent to commit rape. The higher crime includes the lesser. The offense charged was but the aggregation of the criminal assault. The crime of rape cannot be perpetrated without first committing an assault. The assault always precedes the completed offense of rape. These things are so under our statute. Section 4495, Rev. St. (similar to Idaho C. S., sec. 8606.). Where the crime of rape is perpetrated upon a female under the age of consent, the assault is committed by the perpetrator wilfully or feloniously laying hands on her person with the design to carnally know her. In such case, whether or not the female consents is immaterial. When, therefore, the defendant was charged with and tried for the completed offense of rape, it was competent for the jury, as provided in section 4893, Rev. St. (similar to Idaho C. S., sec. 8997), to find him guilty of that specific offense, or of an assault with intent to commit rape, as, in their judgment, the evidence warranted; and the court in so charging the jury committed no error. . . ." (See, also, People v. Babcock, 160 Cal. 537, 117 P. 549; People v. Parker, 74 Cal.App. 540, 241 P. 401; People v. Roach, 129 Cal. 33, 61 P. 574; State v. McLeavey, 157 Minn. 408, 196 N.W. 645; Pittman v. State, 8 Okla. Crim. 58, 126 P. 696; Gordon v. State, 177 Ind. 689, 98 N.E. 627; Snyder v. State, 92 Ohio St. 167, 110 N.E. 644; Sills v. State, 36 Ga.App. 103, 135 S.E. 758; Schang v. State, 43 Fla. 561, 31 So. 346.)

The question is raised whether, in order to sustain a conviction of assault with intent to commit rape, the testimony of the prosecutrix must be corroborated. In this particular case there is corroboration, in the way of a statement made by appellant to the sheriff, at a time when appellant was confined in jail awaiting trial on the charge preferred against him, that he wanted to plead guilty. The admission of this testimony is complained of, on the ground that no proper foundation was laid and that there was no showing that the statement was...