State v. McCune

• Decision Date: 26 January 1898
• Docket Number: 845
• Citation: 51 P. 818,16 Utah 170
• Court: Utah Supreme Court
• Parties: STATE v. DAVID McCUNE

51 P. 818

16 Utah 170

STATE v. DAVID McCUNE

No. 845

Supreme Court of Utah

January 26, 1898

Appeal from the Sixth district court, Garfield county. W. M McCarty, Judge.

David McCune was convicted of an assault with intent to commit rape, and appeals.

Affirmed.

E. B Critchlow, for appellant.

Cited People v. Benson, 6 Cal. 221; Christian v. Com., 23 Grattan 954; People v. Hamilton, 49 Cal. 549; Boxley v. Com., 24 Gratt. 655; People v. Ardage, 51 Cal. 371; Thomas v. State, 16 Tex. App. 535; State v. Massey, (N. C.) 42 Am. Rep. 478; State v. Biggs, 61 N.W. 417; House v. State, 9 Tex. App. 567; Sanford v. State, 12 Tex. App. 196; Irving v. State, 9 Ib. 66; Sadler v. State, 12 Ib. 194.

A. C. Bishop, Atty. Gen., Benner X. Smith and John F. Chidister, for the State.

MINER, J. ZANE, C. J., concurs. BARTCH, J., concurs in the result.

OPINION

MINER, J.:

The defendant in this case was charged with having on the 22d day of September, 1896, in Garfield county, committed an assault on one Louie Talbot, with an intent to commit rape. The jury found the defendant guilty, and he was sentenced to imprisonment in the state penitentiary at Salt Lake City for a period of 18 months. The defendant appealed from the judgment, and alleges that the evidence was insufficient to sustain the verdict and judgment.

The prosecutrix testified, among other things, that she had known the defendant but a few days; that she understood he was a married man, traveling as an agent; that she had attended a party and been with him on several occasions; that on the night in question they had returned to her father's gate at about midnight, and that they both sat down on a pole and talked; that defendant had his arm around her shoulder about 15 minutes; that the place where they sat down was about 10 feet from the door of the house, where her father and sister were asleep; that defendant attempted to place his hands under her clothes, and she said she would halloo if he did not stop; that he replied, "You won't;" that she made no further remark; that he continued to try to get his hand under her clothes; that he placed one hand over her mouth; that she struggled to get free, but did not scream; that she did not think that there was any need of screaming; that she thought that he would behave himself; that she breathed through her nose, and could only make a "smuggled" noise, that could not be heard any distance. She says: "He slipped me over backwards, and put his left leg over my throat, and put my limbs over his right leg, and pressed me in the ground so that I could not breathe. Then he put both hands under my clothes. His hands went down to my naked person that time. I remained in that way until father came out,--probably five minutes. I got my breath through my nose. I could not halloo or scream. Father then came up, and said: 'You son of a b I'll kill you, if it is the last thing I do.' McCune then threw me sprawling, and jumped up and ran away, leaving his hat, and father ran after him. It was a bright moonlight night. I resisted all I could, from the first. I was angry with McCune on account of his conduct. I could not get up and leave him, and that was the reason why I remained there with his hands under my clothes. As father came out, I said, 'You son of a b let me go.'" Other corroborating testimony was given: The defendant admitted taking liberties with the prosecutrix, but claimed that it was done with her consent, and that her statements in other respects were not true. Witnesses were called to impeach and to sustain the general reputation of the prosecutrix for virtue and morality. From all the testimony disclosed by the record, we are of the opinion that the contention on the part of the defendant cannot be maintained. It is true that the assault was made at a time, place, and under circumstances which might tend in some degree to throw discredit upon the testimony of the prosecutrix, and leave a supposition that the defendant might not have intended at the time to consummate the alleged offense by force, and against the will of the prosecutrix, notwithstanding any resistance she might make. But all the surrounding circumstances were shown to the jury, and they found the issues against the defendant. If the jury believed the testimony offered on the part of the prosecutrix, it was clearly sufficient to justify the verdict found. In such cases, and under such circumstances, it is not within the legal power of this court, under the constitution of this state, to substitute its judgment for that of the jury, even if so inclined. This question has been passed upon by this court so frequently that it is unnecessary to give further reasons, or cite authority, in support of the position taken.

Rape under the statute (section 4217, Rev. St. 1898), is not committed upon the person of a woman over the age of 13 years, when no circumstances of force or violence accompany the carnal knowledge. Force or violence, or threats of immediate and great bodily harm, accompanied by an apparent power of execution, are essential elements in the crime of rape. If the threats are such as to create a real apprehension of dangerous consequences, or of great and immediate bodily harm, accompanied by apparent power of execution, or are such as in any manner to overpower the mind of the woman so that she dare not resist, it is sufficient. The general rule requires that there should not only be force, violence, or fraud, but that the utmost reluctance and the utmost resistance on the part of the woman should appear. If, from the whole circumstances, it should appear that although, when the prosecutrix was first laid hold of by force and violence, it was against her will, yet she did not resist afterwards,...