State v. Owens

• Decision Date: 01 December 1913
• Citation: 26 N.D. 329,144 N.W. 439
• Parties: STATE v. OWENS.
• Court: North Dakota Supreme Court

26 N.D. 329

144 N.W. 439

STATE

v.OWENS.

Supreme Court of North Dakota.

Dec. 1, 1913.

Syllabus by the Court.

In the case of a prosecution for the crime of an attempt to commit rape, there need merely be proof of an assault and of an intent to overcome resistance, if made. If such intent has existed at any time during the assault, it is no defense that the assailant later became tired of his efforts or afraid of the probable consequences of his acts, and for this or any other reason desisted without accomplishing his purpose or putting forth his full strength.

Evidence examined, and held to justify a conviction of the crime of an attempt to commit rape.

Appeal from District Court, Traill County; Pollock, Judge.

Henry E. Owens was convicted of an attempt to commit rape, and appeals. Affirmed.

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, N. D. 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 there 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: ‘That is what I am trying to do. I will marry you.’ 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 push 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 behindthe stove. And he says, ‘Don't run behind the stove; don't get scared of me.’ And he say, ‘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 coalroom, 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, ‘I can't keep it. I got to put it up in something.’ 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 once. 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: ‘Come, follow me out. I am going to go.’ 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 fence. I was standing there and he says, ‘Oh, I bet you would be good.’ He was holding on my back. He was holding on my back [indicating buttocks]. I tried to get away from him then. Well, I want to go into the house. I went away from the fence and want to and he says, ‘Don't run, don't go.’ He was not holding me so tight I couldn't get away from him. I stood there at the gate about five minutes. Q. Why did you not get away from him? A. I was sweat, and thought it was good to be out. I didn't permit him to stand there and hold his hand over my person. He got his hand on my back, and I got away from him. I got away from him right away. He did not hold his hand on my back all the time I was standing there. The minute he put his hand on my back I got away from him. My husband was not home then; he was threshing. I got so nervous. I went in the house and got ready and went down where he was. About a mile, down to my sisters. I took the children with me. I was in a state of excitement, I couldn't eat, sleep, work, or do anything for a long time. I was struggling to get away from him when I was standing in the summer kitchen backed up against the south wall of the coalhouse, about 10 minutes. My clothes were not torn. I did not have my monthlies at that time. He held his hands on my privates for about four or five minutes. I crossed my legs for about five minutes. This was the 25th, I think. He came back the second time Saturday of the same week. He knocked. I heard him knock, and I went out to the door. I was standing on the porch and heard him come walking into the house. I did not hear anything more of him, and I was busy-have to wash the floor-and I think maybe he was gone. I went in the house and he was standing in the kitchen door. I saw him and two other men on a load of grain. He got off on the north side. I was scared of him at that time. I saw him come towards the house. Didn't see the door he was going to. I saw him start north. Heard him rap. When I heard it I ran out on the south side. I was in the kitchen when I heard him rap, and ran from the kitchen and sitting room out in the door at the south side in the sitting room. I was standing out there about 10 or 15 minutes. Didn't hear him in the house. Didn't go into the house while I heard him walking. When it was quiet I went in. I did not know for sure that he was there. I thought maybe he was gone. When I returned into the house he was standing right in the door there that goes into the summer kitchen. He asked me where I had been. I said, ‘I was outside.’ He came in and sat down on a chair, and I started to wash the floor. He said, ‘Come, let's go into the other room.’ I said, ‘No.’ He says, ‘Don't you make up your mind yet?’ I said, ‘No, I never make up my mind.’ ‘Well, you promised me once,’ he said. I said, ‘No, I did not.’ And I wash-got the table away there, and I washes. He was not in the room when I started to wash. He was sitting there. He was sitting in the kitchen. I said, ‘If you don't quit running after me I put you fast-I put you in jail.’ And he says, ‘You ain't mean enough to do that.’ I said, ‘Yes.’ And he says, ‘I was stuck on you from the first time I seen you.’ And I says, ‘You mustn't do that, and you wait until my husband coming after you,’ I says. ‘What will he do?’ he says, ‘Will he shoot me?’ I said, ‘I don't know.’ And he says, ‘I want to kiss you.’ I said, ‘No, I never kiss you.’ I wants to run outside, and he said, ‘Don't run outside; the men seen you,’ ‘I don't care,’ I said, ‘I tell the men to come in.’ He says, ‘You mustn't do that.’ I was running all the way I could from him. He wants to catch me, and he grabbed me there on the floor and hold tight across my neck. I pushed my head good and got away from him, I take his coat and tear one or two buttons off his coat. He had hold of me hard there. He said he wanted to kiss me. He said nothing else. He went out of the door and went away. I got loose away from him. I told him, ‘If you don't quit I holler for the men.’ They were in the granary then. I told him I will holler for the men, and he went. When Mr. Owens left the place the second time I went in the house and sat down. I was so nervous, I didn't do...