U.S. v. Bell
| Decision Date | 11 September 1974 |
| Docket Number | No. 74-1410,74-1410 |
| Citation | 505 F.2d 539 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tommie BELL, Defendant-Appellant. . Heard |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard F. Walsh, Federal Defender Program, Chicago, Ill., for defendant-appellant.
James R. Thompson, U.S. Atty., Gary L. Starkman and Donald G. Newman, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.
Before FAIRCHILD, SPRECHER and TONE, Circuit Judges.
The defendant Tommie Bell was convicted in a bench trial of assault with intent to commit rape at a place within the special territorial jurisdiction of the United States, in violation of 18 U.S.C. 113(a). On appeal he raises only one question, viz., whether it is necessary to the offense of assault that the victim have a reasonable apprehension of bodily harm. We answer this question in the negative and affirm the conviction.
It is conceded that while defendant was a patient in the detoxification ward for alcoholic and drug addiction patients in the Veterans Administration Hospital, Downey, Illinois, he attempted to rape a female geriatric patient. It is also undisputed that the victim was suffering from a mental disease which made her unable to comprehend what was going on. Defendant's only asserted defense in the trial court and here is that, because the victim was incapable of forming a reasonable apprehension of bodily harm, there was no assault.
Defendant's contention is squarely contradicted by this court's statement in United States v. Rizzo, 409 F.2d 400, 403 (7th Cir. 1969), cert. denied, 396 U.S. 911, 90 S.Ct. 226, 24 L.Ed.2d 187 (1969). There, in sustaining a jury instruction defining assault (taken from W. Mathes and E. Devitt, Federal Jury Practice and Instructions 43.07 (1965)), the court recognized that there are two concepts of assault in criminal law, the first being an attempt to commit a battery and the second an act putting another in reasonable apprehension of bodily harm. While the second concept was applicable in that case, the court, said with respect to the first:
We adhere to that statement of the law. When a federal criminal statute uses a common law term without defining it, the term is given its common law meaning. United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952). A criminal assault at common law was originally an attempt to commit a battery. 1 W. Hawkins, Pleas of the Crown c. 62, 1 (6th ed. 1788) states:
See also 3 S. Greenleaf, Evidence 59 (16th ed. Harriman 1899); R. Perkins, Criminal Law 114 et seq. (2d ed. 1969). This is the definition given the term in the federal cases. United States v. Hand, 26 Fed.Cas. 103, 104 (No. 15,297) (C.C.D.Pa.1810); Anderson v. Crawford, 265 F. 504, 507 (8th Cir. 1920). The second concept of assault referred to in Rizzo, an act putting another in reasonable apprehension of bodily harm, originated in the law of torts. R. Perkins, id. at 114. Most jurisdictions recognize both concepts of criminal assault. R. Perkins, id. at 116-117; W. LaFave and A. Scott, Criminal Law 82 (1972); 2 W. Burdick, Law of Crime 338 et seq. (1946); 1 F. Wharton, Criminal Law 799 et seq. (12th ed. 1932); J. Miller, Criminal Law 98 et seq. (1934); W. Clark and W. Marshall, Law of Crimes 10.15 (6th ed. 1958); 3 H. Underhill, Criminal Evidence 684 et seq. (5th ed. 1957).
The notion that a reasonable apprehension on the part of the victim is an essential element of criminal assault probably originated with Bishop, who confused the two concepts in a single definition of the offense and included the element of creating a reasonable apprehension of immediate physical injury in that definition. 2 J. Bishop, Criminal Law 23 (9th ed. 1923). Bishop, whose definition has been criticized as not supported by the cases, J. May, Criminal Law 148, at 247 n. 1 (4th ed. 1838), and Note, The Misuse of the Tort Definition of Assault in a Criminal Action, 11 Rocky Mt.L.Rev. 104, 105 (1939), seems to be the only authority who defines reasonable apprehension as a necessary element of the offense. The other commentators referred to above and the many cases they cite show that the two separate types of assault, attempted battery and putting the victim in reasonable apprehension, have been generally recognized. Bishop's definition was discussed and rejected in Commonwealth v. Slaney, 345 Mass. 135, 185 N.E.2d 919, 922-923 (1962) (cited in Rizzo, 409 F.2d at 403 n. 4), which applies the original common law definition of assault, that of attempted battery, and holds that apprehension is unnecessary.
Since an attempted battery is an assault, it is irrelevant that the victim is incapable of forming a reasonable apprehension. Occasions for so holding seem rarely to have been presented. Alderson, B., in The Queen v. Camplin, 1 Cox C.C. 220, 221 (1845), reports that there was such a case in his experience. Regina v. March, 1 Car. & K. 496 (1844), was a conviction for assault against a newborn infant. There are many statements to the effect that an attempt upon an unconscious or otherwise insensitive victim is an assault, both in the cases, e.g., People v. Lilley, 43 Mich. 521, 5 N.W. 982, 985 (1880); People v. Pape, 66 Cal. 366, 5 P. 621 (1885); Ross v. State, 16 Wyo. 285, 93 P. 299, 303 (1908); Woods v. State 14 Md.App. 627, 288 A.2d 215, 216 (1972), and in the treatises, e.g., W. LaFave and A. Scott, supra 82 at 610; 2 W. Burdick, supra 339 at 3; 1 F. Wharton, supra 809 at 1104.
The defendant relies upon the Court's statement in Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct. 209, 213, 3 L.Ed.2d 199 (1959), that 'an assault is ordinarily held to be committed...
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