State v. Rhoades

• Decision Date: 18 November 1908
• Citation: 17 N.D. 579,118 N.W. 233
• Parties: STATE v. RHOADES.
• Court: North Dakota Supreme Court

17 N.D. 579

118 N.W. 233

STATE

v.RHOADES.

Supreme Court of North Dakota.

Nov. 18, 1908.

Syllabus by the Court.

When attacked for the first time by motion in arrest of judgment, an information for the crime of rape in the first degree, drawn under subdivision 3 of section 8890, Rev. Codes 1905, will not be held fatally defective in not charging, in direct and positive language, that the female ravished resisted, and her resistance was overcome by force or violence.

An allegation that defendant did, “by force and violence, then and there overcome the resistance then and there made by ------,” will, when its sufficiency is challenged only after verdict, be held equivalent to an allegation that the female ravished resisted, and that her resistance was overcome by defendant by force and violence.

Evidence examined, and held insufficient to support the verdict finding appellant guilty of rape in the first degree.

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

William Clayton Rhoades was convicted of crime, and appeals. Reversed.J. W. Tilly and Turner, Wright & Lewis, for appellant. W. H. Barnett, State's Atty., Seth W. Richardson, Asst. State's Atty., and T. F. McCue, Atty. Gen., for the State.

FISK, J.

Appellant was convicted of the crime of rape in the first degree, and sentenced to imprisonment in the penitentiary for the period of 10 years, from which judgment he appeals.

Error is assigned upon the ruling of the trial court in denying appellant's motion for a new trial, and also his motion in arrest of judgment. The grounds urged in the motion for a new trial were that the verdict is contrary to the evidence and against law, and the grounds urged in arrest of judgment are: “(1) The information does not state facts sufficient to constitute a public offense; (2) the information does not state facts constituting the offense of rape in the first degree; (3) if the informationcharges any public offense it is that of rape in the second degree.” The charging part of the information is as follows: “That at said time and place the above-named defendant, William Clayton Rhoades, did unlawfully and feloniously, by means of force and violence, then and there overcome the resistance then and there made by ------, she, the said ------, being then and there a female, and not then and there the wife of this defendant, and then and there under the above circumstances, have sexual intercourse with the said ------; that at said time and place the above-named defendant, William Clayton Rhoades, did feloniously have sexual intercourse with one ------, a female person, not the wife of this defendant, by then and there preventing said ------ from resisting, by means of threats of immediate and great bodily harm, then and there accompanied by apparent power of execution.” Appellant's counsel expressly concede that there is no merit in the first ground of the motion in arrest of judgment; their contention being that the information does not charge rape in the first, but merely in the second, degree.

The first pertinent inquiry, therefore, is whether the information sufficiently charges rape in the first degree as against an attack after verdict by motion in arrest of judgment. Section 8890, Rev. Codes 1905, so far as applicable, defines rape as follows: “Rape is the act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (3) When she resists, and her resistance is overcome by force or violence. (4) When she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution.” Under section 8893, Rev. Codes, 1905, rape, accomplished in the manner mentioned in the third subdivision aforesaid, and also in certain other cases not material here, is rape in the first degree, and, when accomplished in the manner stated in the fourth subdivision, is rape in the second degree. By reference to said statute it will be seen that the crime of rape may be committed in several distinct ways, and among the several ways are those mentioned in subdivisions 3 and 4, namely, when the female ravished resists and her resistance is overcome by force or violence; and, when she is prevented from resisting by means of threats of immediate and great bodily harm, accompanied by apparent power of execution. The particular acts constituting the alleged rape should be set forth in the information in a manner sufficient to apprise the accused in which one of these different ways it is claimed he committed the offense. State v. Vorey, 41 Minn. 134, 43 N. W. 324, and cases cited. Under the information in the case at bar an apparent effort was made by the pleader to charge the commission of the offense under both of the subdivisions 3 and 4, and this in one count. This was clearly improper, but no demurrer was interposed, nor did appellant ask that the state be required to elect upon which theory it would proceed. Hence he has waived his right to urge the objection. It follows that, if the information properly charges rape in the first degree, and the evidence of defendant's guilt thereof is sufficient, the verdict must stand, although the information also charges rape in the second degree. Does it sufficiently charge rape in the first degree? It is contended by appellant's counsel that there is no allegation that the female resisted. The language employed in the information is that the defendant did “overcome the resistance then and there made by ------.” Is this a sufficient allegation that she then and there made resistance? It is said that the allegation that defendant overcame “the resistance then and there made,” etc., must be regarded only as the conclusion of the pleader as to the legal effect of the specific act thereafter pleaded, to wit, that she was prevented from resisting by threats, etc. We think such construction not permissible. Without intimating what our decision would be if the sufficiency of the information had been challenged before verdict, we are constrained to hold that, after verdict, and on motion in arrest of judgment, the allegations of the information as to resistance by the female ravished must be held sufficient. While it is true that the general rule of criminal pleading, which has been embodied in our Code (section 9849) requires the essential facts to be averred with directness and certainty, it is also true, as recently held by this court in State v. Johnson, 118 N. W. 230, that when challenged for the first time by motion in arrest of judgment, “the same strict rules will not be enforced in testing the sufficiency of the information as are applied, or will be applied, when its sufficiency is challenged by demurrer.” That case is directly in point as sustaining the sufficiency of the information in the case at bar, as against an attack by motion in arrest of judgment.

This brings us to a consideration of the sufficiency of the evidence. Before reviewing the evidence, it is proper that we should briefly notice the established rules of law to be observed in considering such question. Under section 10,080, Rev. Codes 1905, a new trial may be granted in criminal cases (subdivision 6) “when the verdict is * * * clearly against the evidence.” An appellate court will not ordinarily disturb the decision of the trial judge in denying a motion for new trial, based upon alleged insufficiency of the evidence to support the verdict, and it will not do so in a criminal case, “where the record discloses evidence from which guilt of the accused can be fairly deduced,” but it will interfere where it clearly appears that the verdict has no substantial support, or is clearly without support, in the evidence. State v. Denny, (N. D.) 117 N. W. 869;Williams v. State, 61 Wis. 281, 21 N. W. 56;Lam Yee v. State, 132 Wis. 527, 112 N. W. 425; 12 Cyc. 906-908, and cases cited. The verdict, finding appellant guilty of rape in the first degree, must be supported, if at all, by evidence fairly tending to show that the prosecutrix resisted, and that her resistance was overcome by force or violence. Section 8890, subd. 3, Rev. Codes 1905. Unlike the statutes of most states defining the crime of rape, our statute divides the offense into degrees, and provides, in effect among other things, that to constitute rape in the first degree there must be resistance by the female, and such resistance must be overcome by force or violence. If prevented from resisting by threats, etc., it is rape merely in the second degree. The question to what extent must there be resistance on the part of the female ravished to constitute rape in the first degree therefore logically presents itself. This question has often arisen and been decided in other jurisdictions, as the following citations will show: 23 Am. & Eng. Encyc. Law (2d Ed.) 860-862, and numerous cases therein collated; Mills v. U. S., 164 U. S. 644, 17 Sup. Ct. 210, 41 L. Ed. 584;People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349;People v. Connor, 126 N. Y. 278, 27 N. E. 252;Vaughn v. State (Neb.) 110 N. W. 992;Devoy v. State, 122 Wis. 152, 99 N. W. 455;Brown v. State, 127 Wis. 193, 106 N. W. 536;State v. Cowing, 99 Minn. 123, 108 N. W. 851, 9 Am. & Eng. Ann. Cas. 566. See valuable note on page 572 of last publication. In the last case many authorities are reviewed, and the rule deduced therefrom is summed up by Jaggard, J., as follows: “From the authorities as a whole it fairly appears: (1) That resistance by the female is an issue in a trial for rape only as it is involved in the necessary proof of her want of consent; (2) that to show such unwillingness her resistance must be proportionate to the occasion, under the circumstances and at the time of the act complained of-that is to say, in ordinary cases there must be resistance to the utmost, or at least to the extent of her ability, and in peculiar cases a less degree may be sufficient-(3) and that in...