State v. Neville.

• Decision Date: 18 November 1943
• Docket Number: No. 4789.,4789.
• Citation: 47 N.M. 345,143 P.2d 264
• Parties: STATEv.NEVILLE.
• Court: New Mexico Supreme Court

47 N.M. 345

143 P.2d 264

STATE

v.NEVILLE.

No. 4789.

Supreme Court of New Mexico.

Nov. 18, 1943.

Appeal from District Court, Roosevelt County; J. C. Compton, Judge.

Paul Neville was convicted of assault with intent to rape, and he appeals.

Affirmed.

In prosecution for assault with intent to rape, evidence was sufficient to authorize an inference by jury of an intention by defendant to commit rape.

Mears & Mears, of Portales, for appellant.

Edward P. Chase, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellee.

MABRY, Justice.

Appellant was convicted of the crime of assault with intent to rape and appeals. The questions presented by his assignments of error are: (a) that the evidence is insufficient to support a conviction and (b) that the trial court erred in refusing to give a certain cautionary instruction requested by appellant. There is no merit to either contention.

[1][2] We notice first the assignment going to the sufficiency of the evidence to support the verdict. In this, as in cases of other character, the court will not disturb a verdict based on substantial evidence. State v. Ancheta, 20 N.M. 19, 145 P. 1086; State v. Harbert, 20 N.M. 179, 147 P. 280. Appellant's principal contention seems to be that the evidence falls short of showing an intention to commit rape. We believe the evidence in this respect was ample and that sufficient facts are shown from which intent might reasonably be inferred. People v. Makovicki, 316 Ill. 407, 147 N.E. 393; State v. Krantz, 138 Minn. 114, 164 N.W. 579.

Appellant had gone to the farm of a neighbor, where the prosecutrix and her mother and other members of the family were working, to get permission of the mother to take the prosecutrix to his farm home to work a few days for his wife; she and appellant then left in his automobile to go to appellant's home, passing by the home of the prosecutrix where they stopped, at appellant's suggestion, and insistence, that the prosecutrix go in her house to get her clothes. There was no one at her home at the time, as appellant well knew. After prosecutrix had gotten her clothes and left the house, declining assistance from the appellant who asked if he might come in and aid her, appellant forced her back into the house, and, holding both of her arms, forced her into a bedroom. After holding and twisting her arms and against her resistance appellant himself removed all her clothes excepting her shoes and stockings, tearing some of her garments in the process; he then removed his pants and shirt; he struck her, causing bodily bruises, and swelling; she tried to break loose but was unsuccessful. He then shoved her onto the bed where he forcibly detained her for some ten or fifteen minutes, by holding and twisting her arm and by placing his knee in her side. When asked what he was going to do, he replied, “You know what I am going to do”, and continued molesting her and struggling against her resistance. He ceased his attempts to violate her only after she repeated that she was going to tell his wife, her mother and the “law”.

This sums up substantially the evidence which the prosecutrix herself gave. There is additional evidence showing that as soon as she could get away from appellant's presence after he brought her to his home, and within an hour or two, she ran across a field to the house of a neighbor and, crying, reported the incident. This neighbor together with the prosecutrix thereafter, and late in the same day, reported the incident to the mother of the prosecutrix who had then returned home.

[3] The entire defense, as it relates to the charge, rests upon the untenable ground that the essential element of intent has not been sufficiently shown. The intent with which the act was done is a question of fact, to be determined in the first instance by the Jury from the declaration of the assailant or from the character, manner and circumstances of the assault. Crosby v. People, 137 Ill. 325, 27 N.E. 49.

[4] We have said that there must be substantial evidence to establish that the person charged with such an offense “intended to have intercourse with the female by force and against her will, and that he not only used force where an...