State v. Olsen

• Decision Date: 09 February 1932
• Citation: 138 Or. 666,7 P.2d 792
• Parties: STATE v. OLSEN.
• Court: Oregon Supreme Court

7 P.2d 792

138 Or. 666

STATE v. OLSEN.

Supreme Court of Oregon

February 9, 1932

Department 2.

Appeal from Circuit Court, Lane County; George F. Skipworth, Judge.

James P. Olsen was convicted of assault with intent to commit rape and he appeals.

Affirmed.

Charles A. Hardy and James K. King, both of Eugene, for appellant.

Eugene V. Slattery, Deputy Dist. Atty., of Eugene (Alta King, Dist Atty., of Eugene, on the brief), for the State.

BROWN J.

This defendant and one William H. Donaldson were jointly indicted by the grand jury of Lane county, Ore., on the charge of assault with intent to commit rape.Separate trials were had.Donaldson was acquitted, and this defendant was convicted and sentenced to serve a term of fifteen years in the state penitentiary.From the judgment of conviction he appeals.

The defendant, a young man about 26 years of age, who resides at Eugene, is by occupation a writer of short stories.It appears that, on the evening of June 12, 1931, he was visited by two young men friends, and, after the three had indulged in drinking intoxicating liquor, they concluded to drive to Victoria Heights, a residential section overlooking the city of Eugene, for the purpose of finding some young couple "parking" at this place, and, to use the language of the record "cause this couple to put on what they termed a show."Near the end of the drive, they found parked in an automobile a young couple who, according to the record were former students of the University of Oregon, fellow members of the Wesley Club of the University Students, a Methodist organization, and who had also been keeping company for some time.The defendant and his companions stopped their car across the street from the parked car.As to what then took place, the alleged victim, who appeared as the principal witness for the state, testified that two of the men got out of the defendant's car; that the defendant walked over to the window of the car in which she and her companion were sitting and asked what time it was, then, with gun in hand opened the door of the car, commanded them to get out, and proceeded to march them to the end of the road a short distance away, saying: "If you want to know what we are, we are hijackers."She testified that defendant then asked her companion how much money he had; that they offered their captors what money they had with them, but they refused to accept it, declaring that they would accept no sum under $15.They then offered their watches, but defendant said: "We don't want your watches.What we want you to do is to harm this girl.We won't harm her, but if you don't do what we tell you to do, there will be a rape, the damnedest rape you ever heard of happening up here."Witness' companion said: "I can't do that.What do you fellows want?"Defendant answered, "I don't want your watch," and knocked it to the ground.They next offered checks to defendant, who said: "We don't want your checks.We want you to do what we tell you to do."Defendant then commanded witness to "get down on the ground."Witness failing to obey, he said, "Get down."She then sat down on the ground, and defendant commanded, "Lay down on your back."She testified that defendant"knocked me-just hit me and shoved me down on the ground"; that her companion said."You fellows can't do that," and asked, "What do you want?"That he told them "he couldn't do that to me," and defendant said: "Well, if you don't do it, why, we will.One of us will do it, and then the next one."Then defendant said: "Pull up her dress.*** Pull it up until you show things.*** Take down her stockings."She testified that defendant came to her and started to unfasten her stockings, and she said: "Take your hands off of me.I will unfasten my stockings."Then defendant said to her companion: "Get on her.*** If you don't, we will shoot you."She testified that defendant"kept threatening us, and he was hitting Howard with the gun on his arm most of the time, and because he would raise his arm every time Olsen would raise the gun to strike, and it would land on his arm.But twice he hit him on the head and once on the shoulder quite hard, and he kept threatening.He says, 'If you don't do this we will shoot you.'He said once, 'Now, do it, before I count three;' and he counted, and shoved the gun into Howard's ribs."She testified that defendant kept saying, "If you don't do it, we will."That he further said that he would tie her companion to the tree if he wouldn't do it, and then they would both do it; that finally "he forced Howard onto me," and that defendant and Donaldson "each took hold of my legs, one on one and one on the other, and stretched my legs apart, and forced Howard onto me; and then Olsen put his hand in between us and tore my pants across the crotch of them-it was Donaldson that tore the pants, *** and Olsen pulled my dress up farther, clear up here."We omit further details of this shameless assault until we reach the point where the girl screamed and Donaldson put his hand over her mouth and commanded her to keep her mouth shut.She testified that time after time defendant declared, with much profanity: "We have fooled with you long enough.*** We have given you a break, given you a chance to do it."And that he finally said: "Now, we will do it.We have given you a chance."At the same time he started to pull her companion off her body, and while this was taking place she managed to get up and fled.With defendant in hot pursuit threatening to shoot, she reached the shelter of a house in that vicinity, where she reported the matter.The sheriff and police were notified, and very soon thereafter the defendant was in custody.In describing her wounds witness stated that her knees were skinned and bleeding, and one hand and hip were cut.She said also that her companion's head was bleeding where the defendant had hit him.

The foregoing testimony is corroborated by that of the young man who was the girl's companion on the evening in question.He testified that defendant made threat after threat in an attempt to force him to do as he commanded.He testified fully in relation to the defendant's throwing the girl to the ground, and as to his threats to shoot and kill him if he did not do as commanded.He also swore that his arm and head were severely injured by the succession of blows that were rained upon his body by the defendant with the heavy revolver.

The defendant failed to take the witness stand in his own behalf, but sought to negative the testimony adduced by the state in an attempt to establish an alibi, and by testimony of his previous good reputation.

At the close of the testimony adduced by the prosecution, the defendant moved the court to strike the testimony of the girl from the record, to direct a verdict of not guilty, and claimed that the court erred in giving the following charge to the jury:

"Ladies and Gentlemen: I instruct you that the defendant is charged in the indictment with the alleged crime of assault with intent to commit rape.Rape is the unlawful carnal knowledge of a female by force and without her consent, and the statutes of this state, among other things, provide: 'If any person shall forcibly ravish any female, such person shall be deemed guilty of rape.'

"To constitute the crime of assault with intent to commit rape there are two essential ingredients which must co-exist and be established by the evidence beyond a reasonable doubt.They are, first, an assault; second, an intent to commit the crime of rape.

"An assault is an intentional attempt to do violence to the person of another, coupled with the present ability to carry that intention into effect.Therefore, *** if you find from the evidence beyond a reasonable doubt that the defendant on the 12th day of June, 1931, in Lane County, Oregon, with force and violence forced Jane Doe to the ground and in a position on her back; and if you further find beyond a reasonable doubt that the defendant at the point of a revolver gun and on threat to shoot John Doe, if he did threaten to shoot John Doe, compelled John Doe to attempt to have carnal sexual intercourse with Jane Doe by force and against her will, and with the felonious intent that said John Doe should have carnal sexual intercourse with Jane Doe forcibly and against her will, then the defendant would be guilty of the crime charged, even though you find that John Doe had no criminal intent to commit the act of sexual intercourse with Jane Doe at the time and place in question."

(Substitution of names in above instruction ours.)

We have no quarrel with the contention of defendant's counsel that this case should be heard on appeal on the same theory upon which it was heard in the court below.SeeWinn v. Taylor,98 Or. 556, 190 P. 342, 194 P. 857, and authorities there collated.

In order to ascertain the foundation of the plaintiff's case herein, let us examine the indictment.That instrument accuses the defendant jointly with one William H. Donaldson of the crime of assault with intent to commit rape, and avers that defendant and Donaldson, at a time and place therein named, acting together, feloniously assaulted a named female more than sixteen years of age, with the intent "to forcibly ravish and carnally know" her.The defendant was arraigned and put upon trial.The testimony tended to prove each and every material allegation contained in the indictment; and, as a result of the trial, the jury returned into court a verdict of guilty as charged in the indictment.This is not a case where the defendant was charged with one crime and convicted of another.If the testimony given by the victim and her companion is true, the charge contained in the indictment was established beyond...