State v. Whitmore

• Decision Date: 17 April 1933
• Docket Number: 7084.
• Parties: STATE v. WHITMORE.
• Court: Montana Supreme Court

21 P.2d 58

94 Mont. 119

STATE v. WHITMORE.

No. 7084.

Supreme Court of Montana

April 17, 1933

Appeal from District Court, Fergus County; John C. Huntoon, Judge.

Daniel Whitmore, Jr., was convicted of rape, and he appeals.

Affirmed.

Ayers & Ayers and Aaron R. Shull, all of Lewistown, for appellant.

Raymond T. Nagle, Atty. Gen., C.J. Dousman, Asst. Atty. Gen., and C N. Davidson, Sp. Asst. Atty. Gen., for the State.

MATTHEWS Justice.

Daniel Whitmore, Jr., was convicted of the crime of rape, under an information charging that the act was committed "by violence and force," and against the will and consent of his victim; he has appealed from the judgment.

It is first asserted that the information is insufficient in that it does not allege that the girl assaulted resisted and that her resistance was overcome by force and violence.

Rape is defined as "an act of sexual intercourse, accomplished with a female, not the wife of the perpetrator: *** 1. When the female is under" the age of consent; (2) where she is incapable of consenting because of lunacy, etc.; (3) "where she resists, but her resistance is overcome by violence or force"; (4) when she is prevented from resisting by threats of immediate and great bodily harm, or anesthetic administered; (5) "where she is, at the time unconscious of the nature of the act, and this is known to the accused." Section 11000, Rev. Codes 1921.

The question as to whether or not the prosecuting witness, in any case, offered that resistance which the law requires, and in what manner her resistance was overcome, is a matter of proof rather than pleading, and an information charging that the act was accomplished by violence and force and against the will and consent of the female is sufficient as a pleading and will warrant proof either of resistance overcome by violence or superior force, or of threats of a nature to excuse resistance. State v. Morrison, 46 Mont. 84, 125 P. 649.

It is contended that the evidence was insufficient to warrant the judgment, and that, if believed, the testimony of the prosecuting witness presented a fatal variance from the crime charged, in that it showed that the act was accomplished while she was unconscious.

The evidence on the part of the prosecution is to the effect that the defendant and the girl in question were neighbors and lifelong friends; the girl, of the age of eighteen years, was chaste, and had been out with the defendant on many occasions, on all of which he treated her with respect. On the night of November 27, 1931, the two attended a dance after which the defendant and the girl left in a car. Instead of taking her home, defendant drove two miles into the country and turned into a field, where he solicited intercourse, which was refused by the girl. The defendant, who had been drinking but was not intoxicated, thereupon, according to the story told by the girl, grabbed her by the shoulder and stated that he would succeed if he had to knock her out first; she broke away and succeeded in leaving the car. The defendant followed and struck the girl a "heavy blow" in the face, causing her nose to bleed and rendering her so "stunned" that she had little recollection or knowledge of what then transpired. After the defendant had returned the girl to the car and there accomplished the act, he took her home, where she was met by her mother, to whom she immediately...