State v. McLeavey

• Decision Date: 21 December 1923
• Docket Number: No. 23674.,23674.
• Citation: 196 N.W. 645,157 Minn. 408
• Parties: STATE v. McLEAVEY.
• Court: Minnesota Supreme Court

157 Minn. 408

196 N.W. 645

STATE

v.McLEAVEY.

No. 23674.

Supreme Court of Minnesota.

Dec. 21, 1923.

Appeal from District Court, Goodhue County; Albert Johnson, Judge.

Mike McLeavey was convicted of an attempt to carnally know and abuse a female child under the age of 14 years, and he appeals. New trial granted.

Syllabus by the Court

Indictment charging carnal knowledge necessarily includes as lesser offenses: (1) Attempt to carnally know; (2) indecent assault or indecent liberties; and (3) simple assault.

Evidence examined, and held, that the court should have submitted to the jury the opportunity of finding the accused guilty of these lesser offenses.

Accused cannot predicate error on failure to charge as to a lesser offense when he has not requested such charge.

An assault, whether it be indecent or simple, is an essential and necessary element of the offense of attempting to commit the crime of carnal knowledge.

Under Gen. St. 1913, § 8490, an act done with intent to commit a crime, intending but failing to accomplish it, is an attempt to commit that crime. F. M. Wilson, of Red Wing, for appellant.

C. L. Hilton, Atty. Gen., and Arthur E. Arntson, Co. Atty., of Red Wing, for the State.

WILSON, C. J.

Appellant was indicted on a charge of carnally knowing and abusing a female child under the age of 14. On the trial the county attorney announced that the state would endeavor to prove only an attempt to commit the offense alleged in the indictment.

The case was tried upon that theory, and under the instructions of the court the jury was required to convict the appellant of such attempt or to acquit him.

Appellant was convicted, and from an order denying a motion for a new trial, he has appealed to this court.

The principal questions which appellant brings to this court are: (1) Should the court have permitted the jury to consider assault in the third degree? and (2) Does the evidence show, beyond a reasonable doubt, that the accused was guilty of the crime of which he was convicted?

[1] 1. Should the trial court have submitted to the jury, as within their province, the question as to whether the accused might have been found guilty of simple assault?

The accused was indicted under section 8656, G. S. 1913. He was tried for the crime of attempting to commit the offense charged. Section 8476, G. S. 1913.

The defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment. Section 9213, G. S. 1913.

We hold that, under this statute, the offense set forth in this indictment ‘necessarily included’ not only assault in the third degree, but also the more serious crime of indecent assault or indecent liberties as defined by section 8663, G. S. 1913. The evidence in this case called for an instruction to the effect that the jury might have found the accused guilty of either of these two lesser offenses, as they might determine from the evidence. State v. Glaum, 153 Minn. 219, 190 N. W. 71.

[3] This court has held that an accused cannot predicate error upon the failure to charge as to a lesser offense when he has not requested such charge. State v. Gaularpp, 144 Minn. 86, 174 N. W. 445. In the instant case, no formal request was made for a charge covering indecent assault, or simple assault, but when the state rested counsel for the accused brought up this...