State v. Pepka

• Citation: 37 N.W.2d 189,72 S.D. 503
• Decision Date: 23 April 1949
• Docket Number: 9007.
• Parties: STATE v. PEPKA.
• Court: South Dakota Supreme Court

37 N.W.2d 189

72 S.D. 503

STATE v. PEPKA.

No. 9007.

Supreme Court of South Dakota

April 23, 1949

Sigurd Anderson, Atty. Gen., Charles P. Warren Asst. Atty. Gen. and Frank S. Tait, State's Attorney, of Milbank, for plaintiff and respondent.

Carl J. Eastvold, of Ortonville, Minn., and Thos. Mani, of Milbank, for defendant and appellant.

RUDOLPH Judge.

SDC 13.0401 provides: 'Every person who attempt to commit any crime and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration thereof, * * *' is guilty of a crime. Defendant was convicted of an attempt to commit rape upon a female under the age of eighteen years and has appealed to this court from the conviction. We shall state only such of the evidence as is necessary to an understanding of the alleged errors assigned by appellant. Such statement of the evidence will appear in the discussion of the various assignments.

The information charges that the defendant committed the crime of an attempt to rape as follows: 'That at the time and place aforesaid, the said defendant, Leo Pepka, did, then and there, knowingly, unlawfully, willfully, and feloniously attempt to commit an act of sexual intercourse with a female to wit, one Lois Pepka, the said Lois Pepka, not then and there being the wife of the said perpetrator, Leo Pepka, and the said Lois Pepka then and there being under the age of eighteen years, to wit: of the age of between 13 and 14 years old.' Under the liberalized rules of pleading in criminal actions adopted by our code, all technical forms of pleading are abolished. A defect in a pleading which does not affect a substantial right of the defendant upon the merits, must be disregarded. SDC 34.3002. The information is sufficient if the 'offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.' SDC 34.3010. State v. Morse, 35 S.D. 18, 150 N.W. 293, Ann.Cas.1918C, 570; State v. Sinnott et al., S.D. 30 N.W.2d 455; State v. Rasmusson, S.D., 34 N.W.2d 923. Appellant contends that the information fails entirely to allege any act toward the commission of the crime of rape. The information alleges that the defendant 'knowingly, unlawfully, willfully and feloniously' attempted to commit an act of sexual intercourse with the girl who was under eighteen years of age. Under our liberalized rules of pleading we hold this is sufficient. The girl being under eighteen, there was no necessity, of course, of alleging any assault or force and violence. Here there is the specific charge that the attempt to have intercourse with the girl under eighteen was willful and felonious, it therefore appears that the act attempted was a crime punishable by law. These words, willfully etc., are general and might include any one or more specific acts, however, we do not regard the generality of this information as being fatal. The record makes it clear that no substantial right of the defendant upon the merits was affected, and clearly the information is sufficient to enable a person of common understanding to know what was intended. See State v. Kelley, 125 Kan. 805, 265 P. 1109; Tillman v. State, 158 Miss. 802, 131 So. 265; Lewis v. State, 35 Ala. 380.

The trial court refused to submit to the jury the crime of assault as an included offense. SDC 34.3669 provides: 'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, * * *.' Our statute SDC 13.2401 defines an assault as 'any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another. * * *' The question presented is whether this crime of assault is 'necessarily included' in the crime of an attempt to commit rape upon a girl under the age of eighteen years. Under the definition of an assault the attempt to do corporal hurt to another must be with 'force or violence'. State v. Archer, 22 S.D. 137, 115 N.W. 1075. Under the provisions of SDC 13.2801 the use of force or violence by the man is not an element of the crime of rape where the female is under the age of eighteen years. State v. Allison, 24 S.D. 622, 124 N.W. 747; State v. Fox, S.D., 31 N.W.2d 451. We are of the opinion, therefore, that the crime of assault as defined by our law is not an offense 'necessarily included' in the crime charged by this information. See State v. Holm, 55 Nev. 468, 37 P.2d 821. We have given consideration to the case of State v. McLeavey, 157 Minn. 408, 196 N.W. 645, cited by appellant, and find it not in accord with the reasoning of our own cases, above cited.

The defendant requested an instruction as follows:

'You are instructed that the intent is the gist of the offense charged in the information in this case, and you are instructed that every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have sexual intercourse. Indecent liberties may be taken with a child without any such intent. There must be some circumstances in the case as will demonstrate the purpose and intent of the party charged to have carnal knowledge...