State v. Petty

Decision Date23 July 1952
Docket Number7780,Nos. 7778,s. 7778
Citation73 Idaho 136,248 P.2d 218
PartiesSTATE v. PETTY. STATE v. DEANE.
CourtIdaho Supreme Court

Robert E. Smylie, Atty. Gen., Wm. H. Bakes, Asst. Atty. Gen., and Wm. D. McFarland, Prosecuting Atty. Coeur d'Alene, for appellant.

Wm. S. Hawkins, Coeur d'Alene, for respondents.

Davison & Davison and R. H. Copple, Boise, amici curiae.

TAYLOR, Justice.

Pursuant to stipulation these cases involving identical issues were consolidated on appeal.

The defendants, respondents here, were separately charged by information with the crime of lewd and lascivious acts under the provisions of § 18-6607 I.C. The acts charged in each case are alleged to have been committed with and upon the body and person of a female child under the age of sixteen years. Demurrers to the information were filed raising the same issues in both cases. The demurrers were sustained by the trial court on the ground that the above statute is unconstitutional. As to constitutionality, the act is attacked here on the same grounds urged in the case of State v. Evans, Idaho, 245 P.2d 788. The decision in that case disposes of all issues in these cases except that raised by subparagraph (a) of the demurrers, which urges that more than one offense is charged. In State v. Evans, supra, the lewd and lascivious acts were alleged to have been committed against the person of a female child under the age of sixteen, but no intent to rape was there alleged. Each of the informations now before us sets forth certain lewd and lascivious acts with a female child under sixteen years of age, alleges that such acts were committed 'with the intent of arousing, appealing to, and gratifying the lust and passion and sexual desires of said defendant and of said minor' and continues 'with the intent and purpose of having sexual intercourse with the said' minor child. Thus these informations charge the specific intent required by § 18-6607 I.C., and the specific intent required as an element of assault with intent to rape. §§ 18-901 I.C., 18-907 I.C., and 18-6101 I.C. The other elements of both crimes being sufficiently alleged, the informations charge both lewd and lascivious conduct and assault with intent to commit rape.

In State v. Evans, supra, we held that the charge of lewd and lascivious conduct did not necessarily include assault with intent to rape. That is, a person might commit lewd and lascivious acts upon and with the body of a female child under sixteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, without the intent to have sexual intercourse. But the reverse is not true, because any acts leading to rape or assault with intent to rape, would be lewd and lascivious and would evince the intent described in § 18-6607, I.C. '* * * where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' People v. Greer, 30 Cal.2d 589, 184 P.2d 512 at 516; People v. Chapman, 81 Cal.App.2d 857, 185 P.2d 424.

The statutory rule against charging more than one offense (RR 19-1413 and 19-1703 I.C.) does not apply to included offenses. State v. Garney, 45 Idaho 768, 265 P. 668; State v. Alvord, 47 Idaho 162, 272 P. 1010; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Hix, 58 Idaho 730, 78 P.2d 1003; State v. Garde, 69 Idaho 209, 205 P.2d 504. Where the state elects to charge and prosecute on an included offense rather than on the completed or higher offense the information is not subject to challenge for duplicity even though it may appear therefrom that the completed or higher offense had been committed. State v. Wall, Idaho, 248 P.2d 222. The matter of determining which of two or more applicable criminal statutes will be invoked is for the State to decide. It is not a matter of concern to the accused so long as his constitutional and statutory rights are not violated. State v. Gutke, 25 Idaho 737, 139 P. 346. In the case of included offenses he is protected against double jeopardy since a conviction or acquittal of one is a conviction or acquittal of the other. §§ 19-107, R 19-1717, R 19-1719, 18-301 I.C.; State v. Gutke, supra; State v. Randolph, 61 Idaho 456, 102 P.2d 913; People v. Greer, 30 Cal.2d 589, 184 P.2d 512.

It is a right of the accused to be informed of the exact charge against him. He is entitled to know for what specific offense he is to be tried. Art. 1, § 13, Idaho Constitution; RR 19-1409, 19-1411, 19-1418 and 19-1514 I.C. Here it is apparent from the complaints filed with the magistrate, and the informations, that the state seeks to invoke § 18-6607 I.C. and to prosecute the defendants for lewd and lascivious conduct. And this is the particular offense specifically named in the orders of the committing magistrate. The allegation in the informations of an intent to have sexual intercourse is, therefore, surplusage, subject to be striken on motion of the defendants. In any event, to be treated as such.

The demurrers should have been overruled.

Judgments reversed.

GIVENS, C. J., and PORTER, J., concur.

KEETON, Justice (dissenting).

Following a commitment by the probate judge of Kootenai County, Idaho, the prosecuting attorney filed an information against the respondent, in part as follows:

'That the said James Petty is hereby accused by Wm. D. McFarland, Prosecuting Attorney of Kootenai County, State of Idaho by this information with the crime of Committing Lewd and Lascivious Acts Upon the Body of a Minor Committed as Follows, to-wit: * * * the said defendant James Petty did then and there feloniously, maliciously, wilfully, and lewdly commit lewd and lascivious acts upon, and with the body of * * *, a female minor, under the age of 16 years, to-wit: 15 years of age, and not the wife to said defendant, as follows: * * *'

Following this the prosecutor detailed various acts of an indecent nature alleged to have been committed by the respondent for the purpose of arousing, appealing to, and gratifying the lust and passion and sexual desires of said respondent and of said minor child, 'with the intent and purpose of having sexual intercourse with the said * * *.'

The respondent was arraigned, and by proper motion asked to be informed just what crime was alleged to have been committed.

The prosecutor elected to proceed and prosecute the respondent 'for lewd and lascivious acts upon the body of a minor, as defined by Sec. 18-6607 Idaho Code'. Thereupon, the respondent presented a demurrer to the information on various grounds, among which are the following: first, that more than one offense is charged in the information; 2nd, that Sec. 18-6607 I.C. is unconstitutional for numerous reasons alleged; further that the said Sec. 18-6607 I.C. is uncertain, vague and unintelligible, as it is impossible to determine from the section just what acts are made criminal.

The respondent contended that the section was in violation of the 14th amendment to the Constitution of the United States which provides 'no state shall make or enforce any law which shall * * * nor deny to any person within its jurisdiction the equal protection of the laws.', and further contended that it was in violation of Sec. 6, Art. 1, of the Constitution which, among other things provides: '* * * Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.'

The district judge sustained the demurrer on all the grounds alleged and dismissed the proceedings. The State appealed.

I discussed briefly the constitutionality of the statute in question in a dissenting opinion in the case of State v. Evans, Idaho, 245 P.2d 788. I will not repeat here what I there said, as the dissenting opinion is applicable to the matter now being considered as well as to the case of State v. Evans. The statute, Sec. 18-6607 I.C., in my opinion, is clearly unconstitutional.

In this case, as in the case of State v. Evans, the attorney general argued that the provision of the law challenged here was inconsistent with other defined sex offenses and that the same were therefore necessarily impliedly repealed, so far as covered by the statute under discussion; and further contended that if such inconsistent statutes and penalties, particularly those that provided a lesser penalty...

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20 cases
  • State v. Hall
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...the information as the manner or means by which the offense was committed. State v. Anderson, 82 Idaho 293, 352 P.2d 972; State v. Petty, 73 Idaho 136, 248 P.2d 218; State v. Craner, 60 Idaho 620, 94 P.2d 1081; People v. Greer, 30 Cal.2d 589, 184 P.2d 512; Application of Hess, 45 Cal.2d 171......
  • Schwartzmiller v. Gardner
    • United States
    • U.S. District Court — District of Idaho
    • July 20, 1983
    ...73 Idaho 50, 245 P.2d 788 (1952); assault with intent to have sexual intercourse by an adult male on a minor female, State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed 345 U.S. 938, 73 S.Ct. 834, 97 L.Ed. 1364 (1953); oral-penile contact by an adult male and minor male, Sta......
  • State v. Roderick
    • United States
    • Idaho Supreme Court
    • November 2, 1962
    ...of a false check, he may elect to prosecute under the provisions of § 18-3101. State v. Wall, 73 Idaho 142, 248 P.2d 222; State v. Petty, 73 Idaho 136, 248 P.2d 218; Foyil v. State (Okl.Cr.App.) 187 P.2d 254; Cf. State v. Davis, 81 Idaho 61, 336 P.2d 692; State v. Larsen, 76 Idaho 528, 286 ......
  • State v. Anderson
    • United States
    • Idaho Supreme Court
    • April 27, 1960
    ...victim was under 16 years of age, would also constitute lewd and lascivious conduct as a necessarily included offense. In State v. Petty, 73 Idaho 136, 248 P.2d 218, we held that a charge of lewd and lascivious conduct does not necessarily include assault with intent to commit rape, but tha......
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