State v. Hall
| Decision Date | 30 November 1964 |
| Docket Number | No. 9299,9299 |
| Citation | 88 Idaho 117,397 P.2d 261 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Elwin M. HALL, Defendant-Appellant. |
| Court | Idaho Supreme Court |
William B. Taylor, Jr., Grangeville, for appellant.
Allan G. Shepard, Atty. Gen., and Thomas G. Nelson, Asst. Atty. Gen., Boise, W. C. MacGregor, Jr., Prosecuting Atty. Grangeville, for respondent.
The defendant-appellant, an enlisted man of the United States Air Force, was convicted of the crime of 'attempt to commit rape', although by the amended information, he was charged with the crime of 'assault with intent to commit rape'; he has appealed from an order denying his motion for new trial, and the judgment of conviction and sentence imposed.
The pertinent portion of the amended information reads:
'That on or about the 10th day of March, 1962, at or near Cottonwood, in the said County of Idaho, State of Idaho, he, the said Elwin M. Hall, then and there being, did then and there knowingly, willfully, unlawfully and feloniously with the present ability to do so, unlawfully attempt to assault and have sexual intercourse with one Barbara Hall, a female child under the age of eighteen (18) years, being then of the age of thirteen years (13), and which said minor child was not then and there the wife of the said defendant; but rather was his own natural daughter; that the said defendant did lay his hands and person upon the naked body of the said minor child with the intent then and there had to carnally know and ravage said Barbara Hall, and accomplished with her an act of sexual intercourse, attempting thusly to commit a violent injury upon the person of said thirteen (13) year old minor child, all of which is contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Idaho.'
The defendant assigns as error the instructions given by the court dealing with the offense of 'attempt to commit rape'. He contends that 'attempt to commit rape' cannot be considered as an offense included within the charge of 'assault with intent to commit rape'. He asserts that they are two different offenses, each with different elements; also that if it be determined that the offense of 'attempt to commit rape' is an offense included within 'assault with intent to commit rape', a greater punishment can be imposed for the commission of such lesser included offense than could be imposed for the commission of the greater offense, referring to the penalties imposed by I.C. § 18-907, which fixes the penalty for aggravated assaults, including assault with intent to commit rape, and also to I.C. § 18-306, which fixes the penalty for attempts.
We do not agree with defendant's contention that the offense of 'attempt to commit rape' is not an offense that can be included in the charge of 'assault with intent to commit rape'. I.C. § 19-2312 provides:
'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 of an attempt to commit the offense.'
In State v. Anderson, 82 Idaho 293, 352 P.2d 972, this court in discussing what constitutes an included offense, after referring to I.C. § 19-2312, and reviewing a number of the previous Idaho decisions, stated:
'In State v. Petty, 73 Idaho 136, 248 P.2d 218, we held that a charge of lewd and lascivious conduct does not necessarily include assault with intent to commit rape, but that a charge of assault with intent to commit rape necessarily includes the charge of lewd and lascivious conduct.
'In State v. Owen, 73 Idaho 394, 253 P.2d 203, 212, we laid down the general rule:
"Generally any offense which is included within the language of the information, or necessarily included in the charge, should be submitted to the jury.'
'We therefore hold, in our desire to clear the confusion which has arisen in the premises, that pursuant to I.C. § 19-2312, any offense, the commission of which is necessarily included in that charged in the indictment or information, is an included offense; that, therefore, it is proper for an accused to request, and for the trial court to give, an instruction permitting a conviction of such an included offense, if there is sufficient evidence to support a conviction of the included offense.'
In State v. Blacksten, 86 Idaho 401, 387 P.2d 467, the court determined that aggravated assault, charged under the particular information, was an offense included in the charge of aggravated battery, in that the aggravated assault was alleged as the manner and means of the commission of the aggravated battery and therefor was an included offense.
In the information here under consideration, the means by which defendant is alleged to have committed the offense of 'assault with intent to commit rape' was by his attempt to assault with intent to have sexual intercourse with the prosecutrix. The attempt is alleged as the means by which the assault was committed.
The attempt was not by way of threats or violence. Thus the means by which the alleged offense was committed, also constituting an offense, was sufficiently set forth in the information as an included offense.
Nor do we concur in defendant's contention that a greater punishment can be imposed for the commission of the lesser or included offense that can be imposed for commission of the greater offense charged. The penalty prescribed for the offense of 'assault with intent to commit rape' is imprisonment for a term of one to fourteen years, I.C. § 18-907; and for the offense of 'attempt to commit rape' is one-half of the punishment for the crime of rape, which by statute is fixed at imprisonment for a term of one year to life, I.C. § 18-6104, § 18-306. While a sentence of one-half of a life sentence cannot be calculated, a court is authorized to fix a base maximum sentence, for the offense of rape, at less than life, which base maximum may then be used as the basis to compute the sentence of one-half of such base to be imposed by the court for the offense of 'attempt to commit rape', and the actual sentence thus fixed may be less than the sentence imposed by I.C. § 18-908 for the offense of 'assault with intent to commit rape.' See: People v. Gardner, 98 Cal. 127, 32 P. 880 (1893); In re De Camp, 15 Utah 158, 49 P. 823 (1897); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1955).
Defendant by four of his assignments asserts that the court erred in admitting into evidence State's Exhibit I, which is a written statement executed by the defendant. These assignments of error will be considered together. He asserts that upon proper objection and request the court did not permit, out of the hearing of the jury, a voir dire examination of the witness before whom the statement was taken, so that the circumstance surrounding the making of the statement could be inquired into by the court and by the defendant to determine whether it had been made voluntarily. He further claims the court erred in admitting Exhibit I into evidence over his objection; in the court's denominating the written statement as a 'confession' in the presence of the jury; and in the court's rulings concerning testimony of the defendant's witness, a psychiatrist, touching upon the defendant's mental condition at the time of his execution of Exhibit I.
During the course of the trial the prosecution presented the testimony of a special agent for the Office of Special Investigation of the United States Air Force. The witness was the one who took the defendant's statement, Exhibit I, and administered the oath. This witness testified on direct examination he was an investigating agent of the Air Force, and that he investigated the purported crime; that during the course of his investigation he had a conversation with the defendant. He stated that he read Article 31 of the Uniform Code of Military Justice (10 U.S.C.A. § 831,) 1 to the defendant and advised him of the nature of the investigation being conducted. He testified that:
'I informed Sergeant Hall that he need not make any statement, that any statement that he made could be held against him either in a court-martial or any other court of competent jurisdiction, I informed him that the nature of the offense which I was investigating was assault with intent to commit rape and I also informed him that no force, unlawful coercion, unlawful influence or anything could be used to obtain a statement.'
Following such testimony, the defendant requested that the jury be excused, which was done. While Exhibit I had not as yet been offered, both the State and the defendant in a colloquy with the court held in the absence of the jury considered the question then before the court to be whether the written statement had been given voluntarily in order that it might be received in evidence. The court while the witness was still on the stand, stated: To this last question, the witness answered: 'Yes, sir.' The court thereafter held that there was sufficient foundation already laid, to establish the statement had been made voluntarily by the defendant.
The defendant had the right to rebut this showing, but presented no witnesses, and made no offer of proof that could have controverted the testimony of the witness. After the jury returned, the State offered the written statement in evidence. The only objection presented by the defendant to this statement at that time was to renew the previous objection, which the court overruled and admitted the exhibit in evidence. After the direct examination of the state's witness, the defendant cross-examined him at length concerning the taking of the written statement. The defendant...
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