State v. Owens
| Decision Date | 01 December 1913 |
| Docket Number | 81912 |
| Citation | 144 N.W. 439,26 N.D. 329 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Traill County, Pollock, J.
Defendant convicted of the crime of an attempt to commit rape, and appeals.
Affirmed.
F. W Ames and P. S. Swenson, for appellant.
The conviction in this case must be sustained, if at all, upon the uncorroborated testimony of the prosecutrix. If this is sufficient, and the jury believed it, this court would sustain the verdict. State v. Rhoades, 17 N.D. 579 118 N.W. 233; People v. Mayes, 66 Cal. 597, 6 P. 691.
The jury must be satisfied beyond a reasonable doubt that defendant intended to accomplish his purpose, notwithstanding resistance of prosecutrix. Rex v. Lloyd, 7 Car. & P. 318; State v. Hagerman, 47 Iowa 152.
The assault must be with the specific intention to commit the act by force, and without the consent of the woman. People v Fleming, 94 Cal. 308, 29 P. 647; Bawcom v. State, 49 Tex. Crim. Rep. 417, 94 S.W. 462.
Beseeching the woman to do the act, coaxing, and even assault are insufficient, unless accompanied by an intent on defendant's part to accomplish his purpose without her consent. Franey v. People, 210 Ill. 206, 71 N.E 443; State v. Scholl, 130 Mo. 396, 32 S.W. 968.
The crime can only be committed by the attempt to use necessary force to accomplish the purpose, and with the present intent to do so. Warren v. State, 51 Tex. Crim. Rep. 598, 103 S.W. 888; Douglass v. State, 105 Ark. 218, 42 L.R.A. (N.S.) 524, 150 S.W. 860; Franey v. People, supra; Skinner v. State, 28 Neb. 814, 45 N.W. 53; Dina v. State, 46 Tex. Crim. Rep. 402, 78 S.W. 230; People v. Kirwin, 10 N.Y. Crim. Rep. 338, 22 N.Y.S. 164; Moore v. State, 79 Wis. 546, 48 N.W. 653; 23 Am. & Eng. Enc. Law, 2d ed. 864, 33 Cyc. 1494, note 74, etc.
The law with reference to "attempts" and "assault with intent" is the same. 12 Cyc. 179; 33 Cyc. 1429-1493; Rookey v. State, 70 Conn. 104, 38 A. 911.
Chas. A. Lyche, for respondent.
Intent is the gravamen of this offense, and no particular degree of force is necessary. Evidence of force is offered to prove the offense. Rev. Codes 1905, § 9501; People v. Kuches, 120 Cal. 566, 52 P. 1002; People v. Bowman, 6 Cal.App. 749, 93 P. 198; People v. Collins, 5 Cal.App. 654, 91 P. 158; State v. Barkley, 129 Iowa 484, 105 N.W. 506; State v. Miller, 124 Iowa 429, 100 N.W. 334; State v. Urie, 101 Iowa 411, 70 N.W. 603; State v. Rudd, 97 Iowa 389, 66 N.W. 748; State v. Delong, 96 Iowa 471, 65 N.W. 402; State v. Grossheim, 79 Iowa 75, 44 N.W. 541; People v. Toutant, 133 Mich. 520, 95 N.W. 541; Strong v. State, 63 Neb. 440, 88 N.W. 772; Bannen v. State, 115 Wis. 317, 91 N.W. 107, 965; Tuttle v. State, 83 Ark. 379, 104 S.W. 135; Territory v. Keyes, 5 Dak. 244, 38 N.W. 440; Boyd v. State, 74 Ga. 356; Hanes v. State, 155 Ind. 112, 57 N.E. 704; State v. Jerome, 82 Iowa 749, 48 N.W. 722; State v. Prather, 136 Mo. 20, 37 S.W. 805; Head v. State, 43 Neb. 30, 61 N.W. 494; Wilson v. State, Tex. Crim. Rep. , 73 S.W. 16; Glover v. Com. 86 Va. 382, 10 S.E. 420.
The appellate court will not reverse the findings of the jury as to the existence of an intent to rape, unless there is no evidence thereof in the case. If there is substantial evidence, or evidence upon which the jury could reasonably act, their verdict will not be disturbed. Brown v. State, 121 Ala. 9, 25 So. 744; Smith v. State, 129 Ala. 89, 87 Am. St. Rep. 47, 29 So. 699; Pleasant v. State, 13 Ark. 360; People v. Cesena, 90 Cal. 381, 27 P. 300; People v. Stewart, 97 Cal. 238, 32 P. 8; People v. Johnson, 131 Cal. 511, 63 P. 842; Dunn v. State, 56 Ga. 401; State v. Whitsett, 111 Mo. 202, 19 S.W. 1097; State v. Prather, 136 Mo. 20, 37 S.W. 805; State v. Edie, 147 Mo. 535, 49 S.W. 563; State v. Alcorn, 137 Mo. 121, 38 S.W. 548; Reynolds v. People, 41 How. Pr. 179; Fitzpatrick v. People, 98 Ill. 269; Lathrop v. People, 197 Ill. 169, 64 N.E. 385; State v. Kendall, 56 Kan. 238, 42 P. 711; State v. Sullivan, 68 Vt. 540, 35 A. 479; State v. Hanlon, 62 Vt. 334, 19 A. 773; State v. McCune, 16 Utah 170, 51 P. 818; State v. Courtemarch, 11 Wash. 446, 39 P. 955; Dockery v. State, 35 Tex. Crim. Rep. 487, 34 S.W. 281; Farmer v. State, Tex. Crim. Rep. , 45 S.W. 701; State v. Page, 127 N.C. 512, 37 S.E. 66; State v. Williams, 121 N.C. 628, 28 S.E. 405; State v. Deberry, 123 N.C. 703, 31 S.E. 272; DeBerry v. State, 99 Tenn. 207, 42 S.W. 31; McAvoy v. State, 41 Tex. Crim. Rep. 56, 51 S.W. 928; Norris v. State, 87 Ala. 85, 6 So. 371.
No corroboration in this case is necessary, for there is no law requiring it. 33 Cyc. 1512, and cases cited; State v. Rhoades, 17 N.D. 580, 118 N.W. 233.
A new trial will not be granted for newly discovered evidence which is merely impeaching. 29 Cyc. 918.
Statement of facts
The defendant was convicted of an attempt to commit rape, and relies for a reversal on the insufficiency of the evidence to sustain the verdict. The complaining witness and the defendant lived on neighboring farms near Cummings, North Dakota. The assaults occurred in the home of the complaining witness, and while her husband was away. The complaining witness in effect testified:
I first saw him as he rapped at the door. When I opened the door I saw the defendant. He asked if I had a fire in the stove. I said, "Yes." He said, "It was terrible cold." After that remark he came in and sat down by the stove in the kitchen. When he sat down I started to sweep the floor. During this time nothing was said between me and the defendant. I stayed out in the summer kitchen a long time washing myself and the baby. I went into the house from the summer kitchen into the kitchen with the baby, who was crying. The baby held my hand and I led him. The defendant take hold of me and wants to kiss me. I told him to quit and leave me alone, and I went up and went away from him over to the chair.
Q. Did he try to hold you?
A. Not so hard. I went over to the chair and hold the baby in my lap, and he takes his chair and move over to my chair. It was over where he took hold of me and pull me into his lap and tried to kiss me. Then I go away from him and sat down in another chair. The baby was crying yet. The defendant said, "Let him go out and play." I said, "No, it is too cold for him." And he wants to kiss me again and sort of pinched me on the hip. And he says, "Come, let's go into the other room." And I said, "No," and went from that chair over to the other chair. I says, "Why don't you keep your wife home?" I says, "What you let your wife go for, and don't run after somebody else's?" And he says, "That is what I am trying to do." And I says, "Why don't you get yourself a wife, and don't run after somebody else's wife?" He said, And I says, "I am married and you are married, you know it can't go." And the baby went down and the defendant came over and wanted to sit in my lap; he hold the arm around my neck and I push him down. I pushed him from my lap. I went up and started to wash dishes, and he came there and wants to get hold of me and I went behind the stove. And he says, "Don't run behind the stove, don't get scared of me." And he says, "I won't going to hurt you." And I stand there until he went over to the chair and sat down, and I got done with the dishes. And he came and wants to get hold of me again, and I run out in the summer kitchen, standing in the door there holding the papers in my hand. And he came there and got hold of me and pushed me up against the wall of the coal room, the north side. It was outside in the summer kitchen. It was the south wall of the coal shed. He took hold of me and pushed me against the wall. He held my arms down against here. He hold around the back; hold around the arms here, and I was working to get loose, but I couldn't. Well, I was sweat, and then he says, "You are warmed up some now," and I says, "That is your fault." He want to kiss me. Try to hold his hands,--both my hands with one of his. Then he put his hand under my dress. He was able to hold both of my hands with one of his. He got his hand under my dress, had hold of my person, had hold of my body. He had hold of my privates. He says, "What matter with you." He asked me what was the matter with me, if I was flagged. I said, "Yes." He says, "You ain't tightened up any." I says, "That don't make any difference." When he had his hand on my privates he want me to go with him upstairs. He said I wasn't tightened up any. He says, "Look at this." He was holding his privates in his hand. They were not out of his pants. He said, "What should I do with this?" I said, "Keep it." He says, He was not holding me so tight when this was going on. He stood close to me. I got away from him at that time. He let me go. I struggled with him; I worked all I could so I couldn't work any more. I was clear sweat and tired, and could not hardly stand up. I didn't cry; I couldn't. No, I don't cry so easy. I got so nervous I didn't know what to do. When I got away from him he says I got to promise him one. I said, "No." I was sweating, working to get away from him. He says, "I got you warmed up some." I was scared of him at that time. I told him, "If you don't quit, I tell my husband about this." And he says, "You won't do that, I was stuck on you for the first time I seen you." And I says, "Well, nothing to get stuck on," and he says, "I did." And he says, "I am going to go," and I says, "I wish you would," and he says, And I went out, I think maybe I can get him start to go.
Q. What did you go out for?
A. I thought maybe I could get him to go home. I went out to the...
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