State v. Waid
| Citation | 92 Utah 297,67 P.2d 647 |
| Decision Date | 30 April 1937 |
| Docket Number | 5807 |
| Court | Supreme Court of Utah |
| Parties | STATE v. WAID |
Appeal from District Court, fourth District, Utah County; Martin M Larson, Judge.
Hulon Waid was convicted of simple assault, and he appeals.
REVERSED, AND CAUSE REMANDED, WITH INSTRUCTIONS TO GRANT NEW TRIAL.
Christenson Straw & Christenson, of Provo, for appellant.
Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.
LARSON, J., being disqualified, did not participate.
The defendant was charged with the crime of assaulting and taking indecent liberties with the person of a girl 12 years of age. He was found guilty of simple assault and sentenced to serve three months in the county jail. Defendant appeals.
The evidence of the prosecution may be summarized as follows: Defendant came to the home of the victim of the alleged assault in the evening of July 20, 1935. She and her sister, aged 8, and two other girls were there. He asked if they had been any boys take anything out of a car which stood about two houses down the street. The car, however, was not his. He asked the girls to go over to the Parker School with him to see if there were boys there. They went over to the school building and defendant told the alleged victim and her sister to go on the east side and the other two girls to go on the other side. Defendant accompanied the sisters and, under the pretext of searching for the things he claimed were stolen, placed his hands inside the bloomers of the 12 year old girl and felt of her person. This, as plaintiff's testimony shows, he did twice.
Two other girls, aged 17 and 14, respectively, testified to seeing defendant with the two girls at the Parker School on July 20th in the evening about dusk. The older girl testified she saw that he had his hand inside the bloomers of the girl so assaulted at two different times. The victim testified that she and her sister both tried to get away, but he kept hold of them and pulled them around the building.
Defendant denied being at the Parker School or seeing the girls at all on the evening of July 20th. He gave testimony by himself and two other witnesses that on that evening, covering more than the entire time when the acts complained of were alleged to have been committed, he was at his home and place of business. He conducted a secondhand store next to his home about half a mile from the Parker School.
The court instructed the jury that, included in the crime charged in the information, to wit, indecent assault, is the lesser offense of simple assault, which is a misdemeanor, and that it was for the jury to determine whether simple assault had been committed in the event they were not satisfied beyond a reasonable doubt that the offense of indecent assault had been committed.
In considering the question of included offenses, under our statute, the following proposition was announced by this court in State v. Woolman, 84 Utah 23, 33 P.2d 640, 645, 93 A. L. R. 723:
Section 103-7-9, R. S. Utah 1933, provides:
"Every person who shall assault a child, whether male or female, under the age of fourteen years, and shall take indecent liberties with or on the person of such child, without committing, intending or attempting to commit the crime of rape, upon such child, with or without the child's consent, is guilty of a felony."
It seems clear that by the very terms of the statute itself a simple assault is a necessary element of the greater offense so defined and must of necessity be embraced within that definition. The terms "indecent assault" and "indecent liberties" have been held to be convertible terms. State v. Macmillan, 46 Utah 19, 145 P. 833. Indecent assault is an aggravated assault, and simple assault is necessarily included therein. 5 C. J. 729.
Because the statute has eliminated the question of consent, in so far as the offense defined therein is concerned, does not, of itself, exclude the lesser offense of simple assault from being an included offense so as to require, in every case, a finding of guilt of the defined offense or of no offense at all. That, we think, is true in this State, where an assault is an unlawful attempt coupled with a present ability to commit injury on the person of another. Section 103-7-1, R. S. 1933. We must look to the charge made to determine whether, as an abstract matter, the lesser crime is an included offense. Charging the offense of indecent assault necessarily charges a common assault, for the former offense is necessarily attended with the latter. The acts for which the defendant is held may fall short of constitution an indecent assault, because, under the evidence, what was done may not come within the classification of taking indecent liberties with the person assaulted, and yet these same acts might be such that, under the evidence, the matter of whether a simple assault had been committed should be submitted to the jury. This court in the case of State v. Smith, 90 Utah 482, 62 P.2d 1110, held that under a charge of statutory rape upon a girl under the age of 13 years, being under the age of consent, it was not error to charge that assault is an included offense where the evidence would support a finding of simple assault. To the same effect are the following cases: State v. Hoaglin, 207 Iowa 744, 223 N.W. 548, 552; State v. Brown, 216 Iowa 538, 245 N.W. 306; State v. Swolley, 215 lowa 623, 244 N.W. 844; State v. Jackson, 65 N.J.L. 105, 46 A. 764; State v. McLeavey, 157 Minn. 408, 196 N.W. 645; People v. Gibson 232 N.Y. 458, 134 N.E. 531. In the case of State v. Hoaglin, supra, the court says:
The principle thus announced had been applied in the case of State v. Roby, 194 Iowa 1032, 188 N.W. 709, 713, in which it was held that the trial court "properly instructed the jury that defendant could not be convicted of the crimes usually included in such a charge as this [rape upon a female under age of consent], of simple assault or assault and battery, because the prosecuting witness consented, and could legally consent to the touching of her person." See, also, State v. Blair, 209 Iowa 229, 223 N.W. 554. To the same effect is People v. Gomez, 118 Cal. 326, 50 P. 427. We think the trial court properly submitted to the jury the matter of determining whether defendant committed a simple assault should they find him not guilty of the graver offense charged.
Defendant's chief contention before us arises out of those features of the case affecting his defense of alibi. The court gave no instruction directly covering this defense and no instruction in relation thereto was requested by the defendant. The court, however, gave the following instruction:
"You are instructed that it is not necessary for the State to prove the alleged offense, if any, was committed on the 20th day of July, but any date on or about that time is sufficient if you find from a preponderance of the evidence that the offense charged was committed under substantially the conditions detailed by the witnesses for the State."
Defendant contends that this instruction had the effect of depriving him of his right to have the jury consider and pass upon his defense of alibi. Fairly interpreted, this instruction would permit the jury to find defendant guilty though they believed the offense was committed on any day about the 20th of July, and that there was a preponderance of evidence to the effect that the offense was committed under substantially the same conditions as testified to by the State's witnesses. The court instructed, in effect, that the precise date when the crime was committed was not material, provided the jury were satisfied that the evidence preponderated in favor of a finding that the charged offense had been committed in a manner and at a time and place substantially as the State's witnesses testified.
It would seem that when the defense of alibi is interposed, the date when the crime is alleged to have been committed becomes material. Especially is this true where the evidence of the State is all to the effect that the crime, if any, was committed on a certain date. The trial court ought to restrict the jury in their deliberations to the date thus fixed by the evidence and not permit them to speculate whether the acts might have taken place on some other date not shown by the evidence. State v. Hanna, 81 Utah 583, 21 P.2d 537. Some courts have held that, where the defense of alibi is interposed, the time of the commission of the offense becomes so material that it is prejudicial error to instruct the jury that the time is not material. See State v. King, 50 Wash. 312, 97 P. 247, 16 Ann. Cas. 322; State v. Moss, 73 Wash. 430, 131 P. 1132; State v. Morden, 87 Wash. 465, 151 P. 832; State v. Abbott, 65 Kan. 139, 69 P. 160.
This question, however, was before this...
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...to criminal convictions that would bring the defendant "into public contempt and disrepute of great intensity." State v. Waid , 92 Utah 297, 67 P.2d 647, 652 (1937). See Labrum, 2000 Utah L. Rev. at 543. Finally, the following year, the Court suggested that the exception extended to all cri......
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