State v. Garney

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Appellant was charged with the crime of rape, committed upon a female under the age of eighteen years, and convicted of assault with intent to commit rape. He prosecutes this appeal from the judgment of conviction and from an order overruling a motion for new trial.

It is contended that upon a charge of rape, a conviction of assault with intent to commit rape cannot be had in the absence of allegations of force or violence in the information. Under the statute defining rape in this state (C. S., sec. 8262) it is immaterial, in a case where the female is under the age of eighteen years, whether the act be accomplished by force or violence; she cannot give her consent, and the law resists for her. It seems entirely consistent, therefore, to hold that, if the crime of assault with intent to commit rape is an offense included within the crime of rape, and we are of opinion that it is, there is no necessity of charging the commission of the higher crime, against a female under the age of eighteen years, with force or violence, in order to permit the jury to find the defendant guilty of the lesser offense. (C. S., sec. 8997.) The rule is stated in State v. Blythe, 20 Utah, 378, 58 P. 1108, as follows:

"Nor did the court err in charging the jury that the defendant might be convicted of an assault with intent to commit rape. The information charged the defendant with the specific offense of rape. That charge necessarily included an assault with intent to commit rape. The higher crime includes the lesser. The offense charged was but the aggregation of the criminal assault. The crime of rape cannot be perpetrated without first committing an assault. The assault always precedes the completed offense of rape. These things are so under our statute. Section 4495, Rev. St. (similar to Idaho C. S., sec. 8606.). Where the crime of rape is perpetrated upon a female under the age of consent, the assault is committed by the perpetrator wilfully or feloniously laying hands on her person with the design to carnally know her. In such case, whether or not the female consents is immaterial. When, therefore, the defendant was charged with and tried for the completed offense of rape, it was competent for the jury, as provided in section 4893, Rev. St. (similar to Idaho C. S., sec. 8997), to find him guilty of that specific offense, or of an assault with intent to commit rape, as, in their judgment, the evidence warranted; and the court in so charging the jury committed no error. . . . . " (See, also, People v. Babcock, 160 Cal. 537,117 P. 549; People v. Parker, 74 Cal. App. 540, 241 P. 401; Peoplev. Roach, 129 Cal. 33, 61 P. 574; State v. McLeavey,157 Minn. 408, 196 N.W. 645; Pittman v. State, 8 Okl. Cr. 58,126 P. 696; Gordon v. State, 177 Ind. 689, 98 N.E. 627;Snyder v. State, 92 Ohio St. 167, 110 N.E. 644; Sills v. State,36 Ga. App. 103, 135 S.E. 758; Schang v. State, 43 Fla. 561,31 So. 346.)

The question is raised whether, in order to sustain a conviction of assault with intent to commit rape, the testimony of the prosecutrix must be corroborated. In this particular case there is corroboration, in the way of a statement made by appellant to the sheriff, at a time when appellant was confined in jail awaiting trial on the charge preferred against him, that he wanted to plead guilty. The admission of this testimony is complained of, on the ground that no proper foundation was laid and that there was no showing that the statement was made voluntarily. Such a statement borders closely on a confession, but we are inclined to view it as partaking more of an admission, the difference being that a confession is an outright acknowledgment in express terms, by a party in a criminal case, that he is guilty of the crime charged, while an admission is a statement by the accused of facts pertinent to the issue from which guilt may be inferred and which tends toward proof of the ultimate fact of guilt. (State v. Stevens,60 Mont. 390, 199 P. 257; People v. Ferdinand, 194 Cal. 555,229 P. 341.) The rule requiring a showing that a confession was voluntary and without promise of immunity or reward does not apply to mere admissions. (People v. Camperlingo, 69 Cal. App. 466,231 P. 601; Wilson v. State, 17 Okl. Cr. 47, 183 P. 613.) The admission of this testimony of the sheriff was primarily for the determination of the trial court; there is no suggestion that the statement was anything other than purely voluntary, and we are not disposed to hold its admission erroneous. (State v.Andreason, 44 Idaho 396, 257 P. 370.)

It is urged that error was committed in permitting the prosecuting attorney to ask leading questions. This is a matter within the sound discretion of the trial court (C. S., sec. 8032), and in the absence of an abuse of discretion in this respect, its rulings will not be disturbed. (State v. Simes,12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 914; McLean v. City ofLewiston, 8 Idaho 472, 69 P. 478.)

Certain instructions given to the jury, and the refusal to give an instruction requested by appellant, are assigned as error. When all of the instructions given are considered together, those complained of do not contain errors prejudicial to appellant, some of them being beneficial to him, for which he has no cause for complaint. The majority of the court is of the opinion that it was error not to give the requested instruction, that appellant might be found guilty of simple assault. (People v. De Masters, 105 Cal. 669, 39 P. 35.) While I concede that simple assault is an offense included within that with which appellant was charged and that of which he was convicted, I am not of the opinion that the trial court committed error in refusing to give the instruction requested, there being no evidence tending to reduce the offense to simple assault. (People v. Chavez, 103 Cal. 407, 37 P. 389.)

The court permitted the witness Olive Butler to testify to a conversation between the prosecutrix and her aunt, which took place some two or three weeks after the alleged act, in which the prosecutrix admitted having had sexual intercourse with appellant. In criminal trials for rape and assault with intent to ravish, the courts are unanimous in holding that it may be shown that the prosecutrix made complaint of the outrage soon after its commission, but details of the conversation are not admissible, and the name of the person accused may not be given. (State v. Fowler,13 Idaho 317, 89 P. 757; State v. Black, 36 Idaho 27,208 P. 851.) The fact that the information was elicited from the witness by leading questions would not serve to remove its objectionable features.

Complaint is made of the action of the court in permitting the witness Olive Butler to testify to an alleged assault made upon her by appellant. The witness stated that she did not remember exactly when the assault was made but that it was sometime during the summer; that appellant came up and put his arms around her and made an improper suggestion, and she shoved him away; and that this conduct on the part of appellant was repeated on different occasions. This testimony was inadmissible, and prejudicial. It was in no way linked together with the offense for which appellant was on trial. There must be a causal relation or logical and natural connection between the two acts, or they must form parts of but one transaction. The general rule is, that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon trial, must be excluded. (8 Rawle C. L., p. 198, sec. 194.)

The judgment is reversed and the cause remanded for a new trial.

Wm. E. Lee, C.J., and Givens, Taylor and T. Bailey Lee, JJ., concur.