State v. MacMillan

• Decision Date: 27 January 1915
• Docket Number: 2637
• Court: Utah Supreme Court
• Parties: STATE v. MACMILLAN

145 P. 833

46 Utah 19

STATE v. MACMILLAN

No. 2637

Supreme Court of Utah

January 27, 1915

Appeal from District Court, 3rd District; Hon. M. L. Ritchie, Judge.

D MacMillan was convicted of a crime. He appeals.

AFFIRMED.

Jos. W Rozzelle and Willard Hanson for appellant.

A. R Barnes, Atty. Gen., and E. v. Higgins and G. A. Iverson Asst. Attys. Gen., for the State.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The defendant was convicted of the crime of having committed an "indecent assault" upon the person of a female child of the age of eight years, was sentenced to a term of imprisonment in the state prison, and appeals.

He was charged in the information as follows:

"That the said D. MacMillan, at the County of Salt Lake, in the State of Utah, on the 29th day of March, A. D. 1913, did willfully and feloniously make an assault upon , a female child under the age of 14 years, to wit, of the age of 8 years, and did then and there willfully, unlawfully, and feloniously take indecent liberties with the person of the said without committing, or intending or attempting to commit, a crime of rape on the said , contrary," etc.

The information was based upon chapter 26, Laws Utah 1909, which reads as follows:

"Every person, who shall assault a child, whether male or female, under the age of fourteen years, and shall take indecent liberties with or on the person of such child, without committing, intending or attempting to commit the crime of rape, or the crime of assault with intent to commit rape, upon such child, with or without the child's consent, shall be deemed guilty of an indecent assault, and on conviction thereof shall be guilty of a felony."

It will be observed that the charge in the information is in the language of the statute.

The defendant, before pleading to the merits, interposed a demurrer to the information upon the grounds: (1) That the facts stated therein do not constitute a public offense; and (2) that the acts constituting the offense are not set forth in ordinary and concise language, and in such manner as to enable a person of ordinary understanding to know what is intended in this: That said information fails to state in what manner or under what circumstances the said defendant made the assault upon the said (child), and fails to state in what manner or under what circumstances the said defendant took indecent liberties with the person of said (child). The court overruled the demurrer, and the ruling is assigned as error.

It is insisted that to charge that the defendant did unlawfully, etc., "take indecent liberties with the person of said" child is a mere general statement and is insufficient to apprise the defendant of the particular acts with which he is charged. It is contended that the case of State v. Topham, 41 Utah 39, 123 P. 888, is decisive of the question in favor of the defendant's contention. We need not go into details to show why the principles of pleading which controlled that case have no application here. We think a mere cursory reading of the opinion in that case clearly demonstrates that the reasons why we held the information insufficient in that case also show why the information is sufficient in this case. It has been held that, under a statute like ours, an "indecent assault" and "indecent liberties" are convertible terms. In that connection the court said:

"The crime as defined by the statute is, in its legal tenor and import, an 'indecent assault.' * * * The term 'indecent assault' is but the statutory definition of the crime epitomized." 4 Words and Phrases, 3537; State v. West, 39 Minn. 321, 40 N.W. 249.

The question raised by counsel in this case was presented to and passed on by the Supreme Court of Minnesota in State v. Kunz, 90 Minn. 526, 97 N.W. 131. That court, after setting forth the statute, which, in legal effect is like chapter 26, supra, disposes of the contention as follows:

"He further urges that the indictment is defective because it does not state the particular acts which constitute the alleged indecent liberties. The claim is without merit, for the term 'indecent liberties,' when used with reference to a woman, old or young, is self-defining; and it would be as unnecessary and as indecent to allege the defendant's particular acts as it would be, if he were charged with rape or carnally knowing or abusing a female child under the age of consent, to set forth the evidence in the indictment."

We thoroughly agree with the Supreme Court of Minnesota that the term "indecent liberties," as used in the statute is clearly self-defining. What more could be said, except to state the evidence which proves or establishes the offense? We think that every person of the most ordinary intelligence and understanding, who is familiar with merely the rudiments of the English language,...