State v. Kemp
| Decision Date | 16 December 1907 |
| Docket Number | 16,865 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. KEMP |
Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.
Frank Kemp was convicted of assault, and appeals. Affirmed.
William Hutchinson McClendon and Alfred Wood Spiller, for appellant.
Walter Guion, Atty. Gen., and Robert Stephen Ellis, Dist. Atty (Lewis Guion, of counsel), for the State.
OPINION
The defendant was indicted in the parish of Tangipahoa for assault with intent to commit rape. He was tried, convicted and sentenced to imprisonment in the state penitentiary for 20 years.
He appeals from the verdict and sentence.
There are two bills of exceptions, one to the refusal of the trial court to give a special charge, and the other to his refusal to grant a continuance.
We approach in the first place for decision the ground growing out of the refusal of the district judge to give the special charge requested by defendant's counsel.
The charge requested was that the jury might find a verdict of guilty of assault, or guilty of assault and battery.
In the per curiam the facts are detailed with some particularity. In his general charge the judge had instructed the jury that the specific intent to commit rape was necessary to make out the offense charged.
We are of opinion that assault or assault and battery are not pertinent to the issue, as made by the testimony, as certified by the judge in connection with the point of law involved.
The judge informs us that the uncontradicted testimony of the prosecuting witness was in effect that the defendant took the prosecuting witness by the throat, choked her, and that, owing to her struggles and cries and screams, and the approach of those attracted by her screams, he released his hold upon her throat and ran.
The judge's inference, as stated by him, was that, if the defendant had intended to commit a simple assault or merely to beat and bruise the prosecuting witness, he would not have addressed her as he did (the words are noted somewhere in the transcript), and following it up by violently choking her and struggling with her until some one came to her relief.
There was no evidence, we are informed by the district judge, upon which to base the instruction requested. Therefore there was no necessity to give a charge regarding the lower grades of crime.
The judge's statement is not in the most remote manner questioned. State v. Fruge, 106 La. 694, 31 So. 323.
Whenever the evidence shows that a defendant may well be convicted of either of different degrees the jury should be informed by the court in what these degrees consist. Here the evidence shows nothing of the kind. See syllabus in State v. Bryant, 55 Mo. 79.
In the pending case the uncontradicted statement of the judge is that the evidence did not show that the defendant could well have been convicted of another or less crime. On the contrary, he states clearly and specifically that he was guilty of the crime charged if guilty at all, and that there was no evidence before the court of assault or assault and battery.
Bishop is very clear on the subject. He has cited a large number of decisions in support of his text. 1 Bishop (3d Ed.) § 980.
The statement of the judge, copied in the bill of exceptions, is that the uncontradicted testimony showed the intent to commit rape.
On the part of the defense, the judge was requested to charge that under the indictment the jury "may find a verdict of guilty of assault or of assault and battery." (Italics ours.)
The defendant, through counsel, laid no predicate for the charge. He assumed that without evidence it was proper to give the charge.
That proposition is not sustained by jurisprudence.
There was no theory based upon any, the least, fact that assault or assault and battery was an issue of the case.
This court has decided repeatedly that, on appeal in such a case as that before stated, the verdict would not be reversed.
See State v. Matthews, 111 La. 966, 36 So. 48, and the decisions cited.
The court's charge was complete and full.
The requested instruction is vague and unsupported by any statement that it was ever intimated in any way that assault or assault and battery was an issue of the case, as it was not stated whether the instruction should have been that it was possible to find a verdict of mere assault or of assault and battery. Assault and battery was not charged in the indictment. It charged the intent to commit rape without charging assault and battery. The pleader followed the statute. He did not follow the common-law form, as stated in State v. Fontenette, 38 La.Ann. 61, in which defendant was charged with "violence and beating," and substantial assault brought in the present case does not include assault and battery.
See 8 McClain, § 462. Assault and battery is not necessarily part of the crime.
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