State v. Murbach

• Citation: 55 N.D. 846,215 N.W. 552
• Decision Date: 13 October 1927
• Docket Number: No. 5371.,5371.
• Parties: STATE v. MURBACH.
• Court: United States State Supreme Court of North Dakota

55 N.D. 846

215 N.W. 552

STATE

v.MURBACH.

No. 5371.

Supreme Court of North Dakota.

Oct. 13, 1927.

Syllabus by the Court.

A conviction for an attempt to commit a crime, as defined by sections 10337 and 10338, C. L. 1913, is not vulnerable to attack on the ground that the information on which the trial was had also charges an assault with intent to commit a felony as defined by section 9532, C. L. 1913.

Where on the trial of a criminal cause the instructions to the jury cover generally the elements of the offense and the issues raised on the trial, the defendant cannot complain, because the elements of the offense are not specifically defined, in the absence of a request for such instructions.

On the trial of a criminal cause the omission of the court to instruct as to lesser and included offenses does not constitute error, in the absence of a request for such instructions.

Whether a new trial shall be granted on the ground of newly discovered evidence is a matter which rests largely in the discretion of the trial court, and its action with respect thereto will not be disturbed, except in case of abuse. Held, for reasons stated in the opinion, that there was no abuse of discretion in the instant case in denying defendant's motion for a new trial on the ground of newly discovered evidence.

The record examined, and held, for reasons stated in the opinion, that the evidence is sufficient to sustain the verdict of the jury as returned.

Appeal from District Court, McLean County; J. A. Coffey, Judge.

H. G. Murbach was convicted of an attempt to commit rape, and he appeals. Affirmed.

Williams & Lindell, of Washburn, for appellant.

R. L. Fraser, State's Atty., of Washburn, and S. L. Nuchols, of Bismarck, for the State.

NUESSLE, J.

At the November, 1926, term of court for McLean county, the state's attorney filed an information charging that:

The defendant, Murbach, “* * * did commit the crime of attempt to commit rape, which said crime was committed as follows, to wit: That at the said time and place the said defendant, H. G. Murbach, did willfully, unlawfully, and feloniously make an assault upon one (naming the prosecutrix), a woman, then and there being not the wife of the said Murbach, with the intent then and there to violently, forcibly, and against her will, and by overcoming her resistance, willfully, unlawfully, and feloniously, ravish and carnally know her, the said -----; this contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of North Dakota.”

The defendant was duly arraigned on the charge as made and entered a plea of not guilty thereto. Trial was had to a jury, which returned a verdict finding the defendant “guilty of the crime of attempt to commit rape as charged in the information.” Thereafter the defendant moved for a new trial on the grounds: That the verdict was contrary to law; that the court had erred in its instructions to the jury; newly discovered evidence; and that the evidence was insufficient to sustain the verdict as returned. This motion was denied, and judgment was entered on the verdict. Thereupon the defendant perfected the instant appeal from the order denying his motion for a new trial and from the judgment of conviction.

[1] The statute (section 10337, C. L. 1913) provides:

“An act done with intent to commit a crime and tending but failing to effect its commission, is an attempt to commit that crime. Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be prosecuted for such crime.”

Section 10338, C. L. 1913, provides:

“Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime but fails, or is prevented or intercepted in the perpetration thereof, is punishable, when no provision is made by law for the punishment of such attempt, as follows: [Prescribing the punishment.]”

Section 10890, C. L. 1913, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the information or indictment, or of an attempt to commit the offense.”

It seems clear to us that the information in the instant case was drawn pursuant to the provisions of sections 10337 and 10338, supra, and was intended to charge an attempt to commit rape. The case was tried on the theory that the information was so drawn. The instructions were given on that theory. When the defendant was arraigned, and entered his plea of not guilty, he also apparently viewed the charge as made against him in the same light. At no time during the trial did he intimate that he had any other idea or theory of the case. Neither did he challenge the sufficiency of the information by objection, motion, or request. At the conclusion of the whole case he moved for a directed verdict on the ground “that the state had not proven facts sufficient to constitute the crime of attempt to commit rape.”

Now, however, the defendant contends that the allegations set out and contained in the information do not constitute a sufficient charge of an attempt to commit rape, but amount to a charge of assault with intent to commit a felony, to wit, rape, as defined by section 9532, C. L. 1913. Pursuant to this contention defendant complains that the court erred in instructing the jury that the crime with which the defendant was charged in the information was that of an attempt to commit rape, and that the verdict as returned by the jury is contrary to law and cannot stand.

We are unable to agree with the defendant in these respects. It is to be noted that the information names the offense, which it purports to charge, as an attempt to commit a rape, and then sets forth the manner in which the attempt was made. Though it be true (we do not pass upon the question) that the charge also constitutes a good charge of assault with intent to commit a felony, to wit, rape, as the defendant contends,nevertheless, that fact does not destroy its efficacy as a charge of an attempt to commit rape. The crime of rape may be committed in various ways. See the statute (section 9563, C. L. 1913). And every person who attempts to commit a rape in any of these several ways, and in such attempt does any act toward such commission, but fails or is prevented or intercepted in the perpetration thereof, is punishable under the provisions of the statutes heretofore quoted. So here the information charges an attempt on the part of the defendant to commit rape by force. Certainly it charges an assault upon the person of the complaining witness with the intent and design to commit the crime. This is sufficient under these statutes. The defendant in support of his position cites and relies upon the case of Miller v. State, 84 Tex. Cr. R. 168, 206 S. W. 524, wherein it was held that:

“An indictment charging assault with intent to commit rape will not sustain a conviction for an attempt to rape.”

An examination of this case, however, discloses that it turns upon a statute (Pen. Code 1911, art. 1070) which provides that:

“If it appear on the trial of an indictment for rape that the offense, though not committed, was attempted by the use of” either “force,” threats, or fraud, “but not such as brings the offense within the definition of an ‘assault with intent to commit rape,’ the jury may find the defendant guilty of an attempt to commit * * * rape.”

See, in this connection, McAdoo v. State, 35 Tex. Cr. R. 603, 34 S. W. 955, 60 Am. St. Rep. 61;Warren v. State, 38 Tex. Cr. R. 152, 41 S. W. 635.

[2] The defendant also assigns error on account of the instructions given, because, as he contends, the elements of the crime of attempt to commit rape were not defined to the jury, and because the court omitted to instruct the jury as to the lesser included offenses of assault and battery and simple assault.

The defendant submitted no requests to the trial court that the jury be particularly instructed as to the various elements going to make up the crime of attempt to commit rape. Certain requests touching other matters were submitted and were given in substance and effect as submitted. While the trial court did not define particularly all the elements of the offense of attempt to commit rape, nevertheless, the jury were charged generally respecting the same, and could not have failed to clearly comprehend every essential matter that the state had the burden of establishing in order to warrant a verdict of guilty of the offense charged. The trial court defined the crime of rape by force and told the jury that the defendant was charged with attempting to perpetrate this crime upon the prosecutrix. He further instructed the jury that the question for determination was as to whether or not the defendant had made an assault upon the prosecutrix with intent to commit the crime of rape by force upon her; that even though he did lay hands upon her, if he did this without the intention in his mind to accomplish an act of intercourse with her without her consent and notwithstanding any resistance she might offer, he could not be found guilty of an attempt to commit the crime of rape; that, before he could be found guilty of the charge as made, the jury must find that the defendant so acted in overcoming the resistance of the prosecutrix and in committing some assault upon her as to show an intention, coupled with...