State v. Vorey

• Decision Date: 27 June 1889
• Citation: 43 N.W. 324,41 Minn. 134
• Parties: STATE v VOREY.
• Court: Minnesota Supreme Court

41 Minn. 134

43 N.W. 324

STATEvVOREY.

Supreme Court of Minnesota.

June 27, 1889.¹

(Syllabus by the Court.)

1. In a prosecution for rape under section 235 of the Penal Code the indictment should state the acts constituting the offense so as to advise the accused in which one of the different ways specified in that section he is charged with having committed the crime.

2. Under an indictment under the third subdivision for rape committed by preventing the resistance of the female by fear of immediate and great bodily harm, etc., the defendant cannot be convicted, under the second subdivision, of rape committed by overcoming her resistance by force.

Appeal from district court, Clay county; MILLS, Judge.

Greene & Hildreth, for appellant.

Moses E. Clapp, Atty. Gen., and W. B. Douglas, Co. Atty., for the State.

MITCHELL, J.

Under section 235 there are five several distinct acts or ways by which a person may commit the crime of rape, the second of which is when the resistance of the female is overcome by force, and the third when her resistance is prevented by fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her. The indictment should charge the acts constituting the alleged rape so as to advise the accused in which one of these different ways he is charged with having committed the crime. State v. Henn, 40 N. W. Rep. 564;People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325; People v. Dimick, 107 N. Y. 13, 14 N. E. Rep. 178. The indictment in this case was evidently framed as an indictment under the third subdivision of the section, viz., where the resistance of the female was prevented by fear, etc., and, if good at all, it is under that subdivision.

The allegations peculiar to an indictment for rape committed in that way cannot be treated as surplusage, and, even if they could, there would not be enough left in this case to constitute a good indictment under the second subdivision. Upon the trial the court instructed the jury that there was no evidence to justify a conviction under the third subdivision, but that they might convict the defendant, under the second subdivision, of rape committed by overcoming the resistance of the prosecutrix by force. This last was clearly error, because, for the reasons already suggested, this was not the offense charged in the indictment. Judgment reversed.

1 Publication delayed by failure to obtain copy.