State v. Neil

• Decision Date: 06 July 1907
• Citation: 13 Idaho 539,90 P. 860
• Parties: STATE, Respondent, v. FRANK NEIL, Appellant
• Court: Idaho Supreme Court

90 P. 860

13 Idaho 539

STATE, Respondent, v. FRANK NEIL, Appellant

Supreme Court of Idaho

July 6, 1907

ASSAULT WITH INTENT TO COMMIT RAPE-SUFFICIENCY OF INFORMATION-FELONIOUS INTENT-INTENT TO USE FORCE-EVIDENCE OF COMPLAINT BY PROSECUTRIX-INSTRUCTIONS-PUNISHMENT.

1. An information charging the crime of assault with intent to commit rape, which alleges that the defendant did assault the prosecutrix with intent to have sexual intercourse with her "willfully, feloniously, violently, unlawfully and against her will, wish, consent and resistance," sufficiently alleges the intent to accomplish the felonious act by force and violence.

2. When the charge is assault with intent to commit rape, the intent of the defendant at the time of the assault must be judged of and determined by his acts, conduct and declarations at the time of the commission of the alleged offense, and the question of the intent with which the assault was made is one of fact to be determined by the jury.

3. In order to warrant a conviction of the crime of assault with intent to commit rape, the state must prove beyond a reasonable doubt that the defendant made an assault upon the prosecutrix with intent to use such force as might be necessary in order to have carnal knowledge of her against her will and without her consent.

4. Evidence of complaint made by the prosecutrix to third parties soon after assault, considered, and held proper and admissible.

5. All the instructions given in a case should be read and considered together as a whole, and if when so considered they fairly present to the jury the law of the case, the judgment will not be reversed on account of some specific portion of the instructions, when taken alone, being incomplete or obscure.

6. An instruction which tells the jury that if after considering all the evidence they "have a reasonable and abiding doubt of defendant's guilt," they should acquit him is not so prejudicial as to warrant a reversal of the judgment. The word "abiding," however, should not be inserted in such an instruction.

7. Sentences in criminal cases should be imposed in keeping with the spirit of our law, which has for the object of its penal sentences the protection of society and reformation of the criminal.

(Syllabus by the court.)

APPEAL from District Court of Fifth Judicial District, for Bear Lake County. Hon. Alfred Budge, Judge.

Appellant was convicted of the crime of assault with intent to commit rape, and sentenced to serve a term of ten years in the state penitentiary. He appealed from the judgment and order denying his motion for a new trial. Judgment modified, and as modified affirmed.

Cause remanded, with directions.

Bartch & Bagley, for Appellant.

The prosecutrix is required to resist to the utmost from the beginning to the end, and this must be positive resistance no equivocal opposition will be permitted. (De Voy v State. 122 Wis. 148, 99 N.W. 455; Posey v. State, 143 Ala. 54, 38 So. 1019; Connors v. State, 47 Wis. 523, 2 N.W. 1143; Matthews v. State, 19 Neb. 330, 27 N.W. 234; Brown v. Commonwealth, 102 Ky. 227, 43 S.W. 214; Perez v. State (Tex. Cr. App.), 87 S.W. 351; People v. Kirwan, 22 N.Y.S. 160; Hollister v. State, 156 Ind. 255, 59 N.E. 847; Toulet v. State, 100 Ala. 72, 14 So. 403; Jones v. State, 90 Ala. 628, 24 Am. St. Rep. 850, 8 So. 383.)

"It must appear that she showed the utmost reluctance and used the utmost resistance." (Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283; Vaughn v. State (Neb.), 110 N.W. 992; Reg. v. Hallett, 38 Eng. Com. L. 318; State v. Colestock, 41 Or. 9, 67 P. 418, 419.)

The crime of assault with intent to rape includes every ingredient of the crime of rape, except the element of penetration. (23 Ency. of Law, 2d ed., 864.)

The intent to have sexual intercourse with the prosecutrix at all hazards and despite any resistance she might make is the gist--the gravamen--of the offense, and if lacking, a conviction cannot be upheld. (Shell v. State (Tex. Cr. App.), 38 S.W. 207; Gaskin v. State, 105 Ga. 631, 31 S.E. 740; Clark & Farmer v. State, 39 Tex. Cr. Rep. 152, 45 S.W. 696-701; Hunter v. State, 29 Fla. 486, 10 So. 730; Krum v. State, 19 Neb. 728, 28 N.W. 278; State v. Canada, 68 Iowa 397, 27 N.W. 288; Dunn v. State, 58 Neb. 807, 79 N.W. 719; People v. Fleming, 94 Cal. 308, 29 P. 647; People v. Brown, 47 Cal. 447; Adams v. People, 179 Ill. 633, 54 N.E. 296; Brown v. Commonwealth, 102 Ky. 227, 43 S.W. 214; McGee v. State, 21 Tex. App. 670, 2 S.W. 890; State v. Truitt (Del.), 62 A. 790; Franey v. People, 210 Ill. 206, 71 N.E. 443; Kearse v. State (Tex. Cr. App.), 88 S.W. 363; Sutton v. State, 123 Ga. 125, 51 S.E. 316; Suggs v. State, 46 Tex. Cr. App. 151, 79 S.W. 307; Dina v. State, 46 Tex. Cr. App. 402, 78 N.W. 229, and cases; Ross v. State (Tex.), 78 S.W. 514; Ashford v. State, 81 Miss. 414, 33 South, 174; State v. Hamey (Mo.), 65 S.W. 946, and cases.)

"The intent with which the assault is committed must be the specific intent to rape." (23 Ency. of Law, 2d ed., 865.)

In order to convict the defendant of the charge of assault with intent to commit rape, "it must appear from the evidence beyond a reasonable doubt that the accused intended, if it became necessary, to force compliance with his desires at all events and regardless of any resistance made by his victim." (McCullough v. State (Tex.), 47 S.W. 990; Adams v. People, 179 Ill. 633, 54 N.E. 296; Brown v. Commonwealth, 102 Ky. 227, 43 S.W. 214; Tyler v. State, 46 Tex. Cr. App. 10, 79 S.W. 558; Coffee v. State (Tex. Cr.), 76 S.W. 761; Dockery v. State, 35 Tex. Cr. Rep. 487, 34 S.W. 281, and cases.)

In Anderson v. State, 82 Miss. 784, 35 So. 202, an instruction more accurately stating the law than did this No. 2 was given, and yet the case was reversed on this ground alone. The vice of this instruction was that it authorized a verdict of guilty if defendant intended to have sexual intercourse with the prosecutrix, and ignored the element of force and resistance or nonresistance entirely. This alone was reversible error. (Adams v. People, 179 Ill. 633, 54 N.E. 296; Mills v. United States, 164 U.S. 644, 41 L.Ed. 584, 17 S.Ct. 210; People v. Dohring, 59 N.Y. 374, 17 Am. Rep. 349.)

Instruction No. 17, on circumstantial evidence, was good law in the abstract, but there was no circumstantial evidence in the case. Instructions not based upon evidence in the case are erroneous. (Gwinn v. Gwinn, 5 Idaho 271, 48 P. 295; Wortman v. People, 25 Colo. 270, 53 P. 1053; Johnson v. People, 197 Ill. 48, 64 N.E. 286.)

Instruction No. 8 was erroneous in that the quality of the doubt was too strongly stated. It was stated that they must have an "abiding doubt." This is erroneous. (State v. Anthony, 6 Idaho 383, 55 P. 884.)

An erroneous instruction is not cured by a correct one subsequently given on the same subject, unless the latter specifically withdraws the erroneous one. (Holt v. Spokane & P. Ry. Co., 3 Idaho 703, 35 P. 39; People v. Wong Ah Ngow, 54 Cal. 154, 35 Am. Rep. 69; 11 Ency. of Pl. & Pr. 145, 146; State v. Fowler, 13 Idaho 317, 89 P. 757.)

It has been held that an indictment which does not say that the act was done against the will of the prosecutrix, notwithstanding it alleges that it was forcibly done, is insufficient. (State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L. R. A. 179.)

J. J. Guheen, Attorney General, Edwin Snow, B. S. Crow and J. H. Peterson, for Respondent.

A verdict of guilty on the charge will not be disturbed where the evidence shows an assault and the question of intent is fairly submitted to the jury, even though the evidence bearing upon the intent may be slight. (State v. Beard, 6 Idaho 614, 57 P. 867; 1 McClain, Crim. Law, sec. 463, and cases.)

The entire charge on a particular point must be considered to determine whether it is misleading. (People v. Bernard, 2 Idaho 193, 10 P. 30; State v. Wetter, 11 Idaho 433, 83 P. 341.)

The instructions are to be considered as a whole, and an erroneous instruction which did not mislead the jury is not ground for reversal. (State v. Wetter, 11 Idaho 433, 83 P. 341; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Rice, 7 Idaho 762, 66 P. 87.)

Conceding that some of the defendant's instructions were correct, it was not error to refuse to give them if instructions of the court cover the issues involved and state the principles applicable. (State v. Rathbone, 8 Idaho 161, 67 P. 186; State v. Lyons, 7 Idaho 530, 64 P. 236; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Roland, 11 Idaho 490, 83 P. 337.)

The instruction in regard to reasonable doubt, assigned as error, is an instruction which in substance has been passed upon by this court in numerous cases. (People v. Dewey, 2 Idaho 83, 6 P. 103; State v. Levy, 9 Idaho 483, 75 P. 227; State v. Kruger, 7 Idaho 178, 61 P. 463; State v. Steers, 12 Idaho 174, 85 P. 104.)

The sufficiency of the information, in practically the identical form of the one in the present case, has been previously passed upon by this court. (State v. Beard, 6 Idaho 614, 57 P. 867.)

AILSHIE, C. J., SULLIVAN, J. Sullivan, J., Ailshie, C. J., concurring.

OPINION

AILSHIE, C. J.

Appellant was convicted of the crime of assault with intent to commit rape, and was sentenced to serve a term of ten years in the state penitentiary. He has appealed from the judgment and an order denying his motion for a new trial.

The assignments of error will be considered under four general divisions: 1. The order overruling defendant's demurrer to the information; 2. The sufficiency or insufficiency of the evidence to support the verdict and judgment; 3. Errors alleged as having been committed in the admission and rejection of evidence offered; 4. The instructions given to the jury, and refusal to give certain...