State v. Holm
| Decision Date | 05 January 1935 |
| Docket Number | 3081. |
| Citation | 37 P.2d 821,55 Nev. 468 |
| Parties | STATE v. HOLM. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; B.F. Curier, Judge.
Andy Holm was convicted of an attempt to carnally know a female child under 18 years of age, and he appeals.
Affirmed.
Ernest S. Brown, of Reno, for appellant.
Melvin E. Jepson, Dist. Atty., and A.P. Johnson, Deputy Dist. Atty both of Reno, and Gray Mashburn, Atty. Gen., and W.T. Mathews and Julian Thruston, Deputy Attys. Gen., for the State.
Andy Holm, hereinafter called defendant, was, on May 28, 1934 informed against in the court below for an attempted rape alleged in the information to have been committed in manner following:
"That the said defendant on the 8th day of May, A. D. 1934, or thereabout, and before the filing of this information, at and within the County of Washoe, State of Nevada, did, then and there, being then and there a male person over the age of sixteen years, to-wit, of the age of about forty-nine years, wilfully, unlawfully and feloniously, attempt to carnally know the person of one, Alice Tillman, a female child under the age of eighteen years, to-wit, of the age of fifteen years, by inducing the said Alice Tillman to go into his dwelling house at No. 3 Seventeenth Street, City of Sparks, Washoe County, Nevada, and by locking her in said dwelling house and forcibly and violently throwing and struggling with her upon a bed therein and by pursuing her from said dwelling house and forcibly restraining and struggling with her on the ground in the yard of said premises and endeavoring, but failing so to do, at said places, to have sexual intercourse with her, the said Alice Tillman, all with the felonious intent then and there to rape her, the said Alice Tillman."
Upon arraignment, in addition to the plea of "Not Guilty," pleas of former conviction and jeopardy for the offense charged were entered without objection on the part of the state. Upon the trial, and when the state rested its case, the defendant, in support of his special pleas, offered in evidence the record of the proceedings in the justice's court of Sparks township, Washoe county, Nev entitled "State of Nevada Vs. Andy Holm," from which it appears that on the 9th day of May, 1934, the defendant was arrested upon a warrant issued out of said court charging him with the crime of assault and battery on the person of Alice Tillman, and on that day was committed to imprisonment in the county jail of Washoe county for the period of 180 days. In support of his plea of former jeopardy, the defendant offered evidence to show that the charge ofjeopardcated upon the same act, but does not apply to a different act. State v. Gaimos, 53 Mont. 118, 162 P. 596. The essential element of the offense of assault and battery was force and violence upon the person of the prosecutrix without any intent to carnally know her, in violation of the statute upon which the information before us was grounded. Though the attempt to carnally know the prosecutrix was accompanied by force, force was not an essential ingredient of the crime of carnal knowledge of the prosecutrix under the age of 18. State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754.
Counsel directs our attention to section 10911, N. C. L., which provides as follows: "When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted...
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