Opinion
No. 7,643.
Submitted February 8, 1937.
Decided February 26, 1937.
Criminal Law — Attempt to Commit Rape — Sufficiency of Information — Criminal Intent — Evidence — Sufficiency — Intoxication as Defense — Instructions. Attempt to Commit Rape — Information — Sufficiency. 1. Information charging that defendant wilfully, unlawfully and feloniously attempted to have sexual intercourse with prosecutrix, and forcibly and violently, without her consent and contrary to her wishes and expressed protest, demanded that she submit to sexual intercourse and by force attempted to overcome her and accomplish the act of intercourse, held sufficient under the statutes (secs. 11843, subd. 2, 11845, Rev. Codes), as against the objections that no overt act was charged and that intent was insufficiently alleged. Same — Indefinite and Uncertain Information — Bill of Particulars Available to Defendant. 2. Where defendant charged with crime (attempt to commit rape) deems the information too indefinite and uncertain he has the privilege of applying for a bill of particulars, and where it is apparent that by reason of the too general character of the charge defendant may have difficulty in preparing his defense, the trial court should incline toward granting the motion for such a bill. Same — Criminal Intent — Sufficiency of Evidence. 3. In a prosecution for attempted rape, evidence, showing a prolonged struggle and vicious attack in which prosecutrix was badly beaten in her efforts to thwart defendant, held sufficient to show his criminal intent. Same — Intoxication as Defense — Sufficiency of Evidence to Warrant Finding of Jury That Defendant Responsible. 4. Where the evidence in a prosecution for attempted rape showed that defendant was able to drive prosecutrix in his car to a place near a city suitable for his purpose, engage in a prolonged struggle in an effort to carry out that purpose, and realizing that she was in such a condition that it would be unwise to take her home, offered to take her to a place to have her cleaned up, which was refused, and thereafter to go to his hotel and to his room and go to bed, the jury was warranted in finding that his defense of intoxication was not borne out by the facts, but that he knew what he was trying to do and was responsible. Same — Defense of Intoxication — Giving of Instruction in Language of Section 10728, Subd. 1, Revised Codes, Held not Error. 5. Where the sole defense of one charged with an attempt to commit rape was intoxication, the trial court held not to have committed error in giving an instruction in the words of subdivision 1, section 10728, Revised Codes, declaring, in effect, that an act is no less criminal because committed by an intoxicated person, and that the jury may take into consideration the fact that the accused was intoxicated in determining the purpose, motive or intent with which he committed the act, although, as a general rule, courts do not approve the giving of abstract propositions of law as instructions to juries. Same — Refusal of Instruction as to Specific Intent to Rape not Error Where Subject Covered by Instructions Given. 6. Refusal of an offered instruction that a specific intent to rape is an absolutely essential ingredient of an attempt to rape and must accompany the means to effect the crime, held not error, in view of other instructions given sufficiently covering the point.
Appeal from the District Court, Missoula County, in the Fourth Judicial District; J.E. Rockwood, Judge of the Eleventh District, presiding.
Mr. E.C. Kurtz and Mr. Fred W. Schilling, for Appellant, submitted an original and a reply brief; Mr. Schilling argued the cause orally.
Mr. Enor K. Matson, Attorney General, Mr. Edmund T. Fritz, Assistant Attorney General, and Mr. George F. Higgins, County Attorney of Missoula County, for the State, submitted a brief; Mr. Carl N. Thompson, Assistant Attorney General, argued the cause orally.
The information is insufficient. It is entirely silent in reference to any act or acts done by defendant in the perpetration of the alleged offense; no overt act of any kind is mentioned, described, charged or set out. Where the offense charged is an attempt to commit rape something more than conclusions must be pleaded; the acts relied upon to show the attempt must be set out and alleged. ( Bond v. State, 12 Okla. Cr. 160, 152 P. 809; State v. Dawson, 45 Nev. 255, 201 P. 549; State v. Russell, 64 Kan. 798, 68 P. 615; Williams v. State, 10 Okla. Cr. 336, 136 P. 599.) "Indictments for attempt to commit crimes must aver the intent and the overt act constituting the attempt." ( Hogan v. State, 50 Fla. 86, 39 So. 464, 7 Ann. Cas. 139; Wharton on Crim. Law, sec. 227; Kelly's Crim. Proc., sec. 5; 3 Bishop's New Crim. Proc., sec. 81; Chitty's Crim. Law, sec. 815; 52 C.J., secs. 66, 67, p. 1047; People v. Gibbons, 260 Mich. 96, 244 N.W. 244, 245; State v. Frazier, 53 Kan. 87, 36 P. 58, 42 Am. St. Rep. 274.)
While this court has not, so far as we have been able to ascertain, passed squarely upon the question of the sufficiency of an information in cases of this kind, yet, what is said in the opinions of the following cases is pertinent: State v. Collins, 88 Mont. 514, 294 P. 957, 73 A.L.R. 861; State v. Hennessy, 73 Mont. 20, 234 P. 1094; State v. Kerrigan, 87 Mont. 396, 287 P. 942. All the cases and all text-book writers so far as we have been able to learn, hold that where the charge is an attempt to commit rape upon a female over the age of consent two things are essential, (1) the overt acts must be alleged, and, (2) a specific intent to commit the offense must be set out. Here the information contains neither. The word "intent" is not embodied in the information at all, — no overt act is set out or charged, — it is not even alleged that there was an assault.
"In order to convict a defendant on the charge of an assault with intent to commit rape, the evidence should show not only an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part." (22 R.C.L., p. 1232, sec. 70; 52 C.J., p. 1028, sec. 40; State v. Hennessy, supra; State v. Wilson, 32 Wyo. 37, 228 P. 803; State v. Bernhardt, 51 Idaho, 134, 3 P.2d 537; State v. Johnson, 26 Idaho, 609, 144 P. 784.) Solicitation, preparation, suggestions and importunities are not sufficient. The evidence must establish an attempt upon the part of defendant to gratify his passion, at all events, and to overcome all resistance. Such facts are not established by the evidence in the case at bar. The evidence merely shows suggestions, solicitation and importunities.
Specific intent being a necessary ingredient of the crime of attempt to commit rape, it was, and is, the contention of defendant, that if he was so far under the influence of intoxicating liquor as to be unable to form such intent, this would constitute a defense. The court erred in refusing defendant's offered instructions on that subject. ( Jamison v. State, 53 Okla. Cr. 59, 7 P.2d 171; People v. Murphy,
1 Cal. 2d 37, 32 P.2d 635; State v. Byers, 136 Wn. 620, 241 P. 9; Copperfield v. State, 37 Okla. Cr. 11, 255 P. 590; State v. Reagin, 64 Mont. 481, 210 P. 86; State v. Steffens, 116 Iowa, 227, 89 N.W. 974; People v. Phelan, 93 Cal. 111, 28 P. 855; State v. Smailes, 51 Idaho, 321, 5 P.2d 540; Maples v. State, 30 Okla. Cr. 151, 235 P. 264; 52 C.J., p. 1118, sec. 153.)
Sufficiency of information: It is true that the details of the overt acts must be proven as an element of the offense of attempt to commit rape. But it does not follow, unless required by statute, that such details must be charged in the information. In Robinson v. State, 118 Ga. 32, 44 S.E. 814, the court held, as against the contention that the overt act was not set out, that an information was good which charged that the accused "then and there unlawfully and with force and arms in and upon (a named female) * * * violently, feloniously, and forcibly did make an assault, with intent her the said (female) then and there forcibly and against her will to feloniously ravish and carnally know." The charge was assault with intent to rape. In State v. Pierpoint, 38 Nev. 173, 147 P. 214 (Brief of Appellant, p. 16) defendant was accused of attempt to commit (statutory) rape. The information alleged that accused attempted rape by procuring the female child to get in bed with him and by soliciting her to have intercourse with him with intent to rape. As against the contention of failure to allege an overt act the information was held good, even assuming that such acts would be mere solicitation with a female of the age of consent and for that reason could not be an overt act. In People v. Superior Court, 39 Cal.App. 324, 178 P. 730, the court held the information good where it charged that accused "did wilfully, unlawfully, and feloniously and with force and violence attempt to have and accomplish an act of sexual intercourse with and upon" the female. It is not amiss to point out here that the applicable Montana statutes are practically identical with the California statutes. In Braddus v. Commonwealth, 126 Va. 733, 101 S.E. 321, the court held the information good, as against the objection of failure to charge an overt act, which alleged that accused attempted "to ravish and carnally know" the prosecutrix "against her will and by force." In Cunningham v. Commonwealth, 88 Va. 37, 13 S.E. 309, the court was considering an indictment with the same wording and held it sufficient.
In common with appellant, we must admit having found no Montana case passing squarely upon the question presented. However, the contentions made herein are somewhat analogous to those made in State v. Shannon, 95 Mont. 280, 26 P.2d 360, as are those in State v. Morrison, 46 Mont. 84, 125 P. 649, and State v. Whitmore, 94 Mont. 119, 21 P.2d 58.
It appears that the information can have but one meaning: That defendant is accused of an attempt to rape the prosecuting witness by demanding that she submit against her will and by trying to overcome her forcibly in order to accomplish the act of sexual intercourse. The appellant was arrested a few hours after the commission of the offense and officers told him what he was charged with. He told a fellow prisoner what he was charged with. The information clearly sets out the time and place of the offense, and the name of the prosecutrix. If defendant, in order to prepare his defense, needed information as to the detailed means used by him in the commission of the offense, it would seem that a bill of particulars was his proper remedy. ( State v. Shannon, supra.)
The sufficiency of the information is attacked on the ground that a specific intent to commit the offense charged is not set out. The information charges appellant with the crime of attempt to commit rape and avers that appellant did "wilfully, wrongfully, unlawfully and feloniously attempt," etc. The term "wilfully" imports that the acts were committed designedly and intentionally. ( State v. Lehman, 131 Minn. 427, 155 N.W. 399, Ann. Cas. 1917D, 615; State v. Bell, 26 Minn. 388, 4 N.W. 621; State v. Psaras, 121 Wn. 156, 208 P. 1094; 30 Am. Eng. Ency., 2d ed., 525; Words Phrases, 1st, 2d 3d and 4th editions; Bouvier's Law Dictionary (3d revision) 3454; Webster's New International Dictionary; 68 C.J. 286 et seq.; State v. Allen, 34 Mont. 403, 87 P. 177.)
Intoxication: All that the trial court ought ordinarily do is to state to the jury that drunkenness is one of the circumstances tending to show the state of defendant's mind, and thus bearing upon the question of the presence or absence of an intent. Probably in no case would it be error to refuse to go further, or to give any more specific charge. The fact of intoxication is not conclusive against the existence of such an intent. ( State v. White, 14 Kan. 538, 541.) If it be true that appellant was intoxicated at the time he attempted to commit rape upon the prosecuting witness, the trial court fully met that aspect of the case when it charged the jury that the fact of intoxication should be considered in determining guilt; that while drunkenness, of itself, could not avail as a defense, yet it should be considered upon the question of whether the act was committed with deliberation and premeditation. ( State v. Zorn, 22 Or. 591, 30 P. 317.)
Defendant's offered instruction D-4 was properly refused in any event. Where accused tenders the defense of intoxication the burden is on him to establish it. (16 C.J. 533, sec. 1003.) The instruction offered would have the effect of shifting the burden. In effect it charges: "If you have a reasonable doubt whether the defendant was sober enough to form the specific intent to commit rape you cannot find him guilty. The rule is stated in Corpus Juris: "Where the actual existence of a specific intent is necessary to constitute the particular kind or degree of crime, and there is evidence of drunkenness which may negative such intent, the court should charge that the jury may take into consideration the fact that accused was intoxicated in determining the intent with which he committed the act; and it may instruct them that such evidence should be received with caution, and should explain when it is that intoxication is a defense to crime." (16 C.J. 976, sec. 2374.)
Russell M. Stevens, alias John Roberts, was convicted of an attempt to commit rape in Missoula county and sentenced to serve a term of 30 years in the state prison. Motion for a new trial was made and overruled. The appeal is from the judgment and the order denying new trial; it is predicated upon eight assignments of error. However, the assignments contemplate three propositions: (1) The sufficiency of the information; (2) the sufficiency of the evidence to support the verdict and judgment; and (3) the refusal of offered instructions.
The charge was based upon the provisions of section 11590 of the Revised Codes, the material part of which reads as follows: "An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime."
The charging part of the information is as follows: "That at [1] the county of Missoula, State of Montana, on or about the 2d day of February, 1936, and before the filing of this information, the said defendant, being a male person over the age of 21 years, then and there being, did then and there wilfully, wrongfully, unlawfully and feloniously attempt to have sexual intercourse with one Ruth Box, a female over the age of eighteen years and not the wife of the defendant, and did then and there forcibly and violently and without the consent of the said Ruth Box, and did contrary to her wishes and expressed protest demand that she submit to sexual intercourse and did then and there by force attempt to overcome her and accomplish an act of sexual intercourse," etc.
Defendant's demurrer to the information was overruled. At the trial he objected to the introduction of any testimony and made proper and strenuous objections at every stage of the proceedings. These objections were largely based upon the asserted contention that the information was insufficient by reason of the fact that neither the specific intent nor the specific acts employed in the perpetration of the alleged offense were set out.
The information must contain "a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended." (Subd. 2, sec. 11843, Revised Codes.) "The * * * information must be direct and certain, as it regards — 1. The party charged; 2. The offense charged; 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense." (Sec. 11845, Id.)
Does the information meet the requirements of these two sections? We are of the opinion that it does. No one of common understanding can misunderstand what was intended by the language of the information. The defendant was charged, the offense was charged, and the circumstances of the offense were charged. True, the specific act or acts constituting the commission of the offense, or rather the things done in the prosecution of the attempt, were not charged in so many words. There was, however, the specific charge that the attempt to commit rape was made forcibly and violently, and against the will and without the consent of the prosecutrix; that the attempt was wilful, wrongful, unlawful, and felonious; and also that defendant did, contrary to the wishes and express protest of prosecutrix and by force, attempt to overcome her and accomplish an act of sexual intercourse. It seems that the charge could not be very much plainer than that, without pleading evidence.
It is argued that no overt act was charged, and authorities are cited to support that contention. We do not believe that such authorities are controlling in this case. Conceding, as we must, that the acts charged were general rather than specific, we still fail to see that any prejudice could have come to the defendant. He knew that he would be called upon to defend against any and all acts of force and violence which he might have used in the attempt to consummate the crime. In the case of State v. Evans, 27 Utah, 12, 73 P. 1047, it was said in the discussion of a similar matter: "This is not a case where the accused, under such an information, may be taken by surprise, as in case of a crime which may be committed in several different ways or with various means, and therefore the reason of the rule which requires the overt act or acts by which a crime was committed to be pleaded does not apply, and hence the rule itself ought not to be enforced." We fail to see how the defendant could have been prejudiced by the failure to be more specific. (Sees. 11853, 11874, 12125, Rev. Codes. See, also, State v. Kelley, 125 Kan. 805, 265 P. 1109.)
Defendant argues that intent was not sufficiently charged. We are aware of the rule that in this type of crime a specific intent to commit rape is an essential ingredient. Again we are unable to see how the intent could be much plainer. The information charged that defendant demanded that prosecutrix submit to sexual intercourse, and that he then by force attempted to overcome her against her express protest. It will thus be observed that nothing was left uncertain. No one was required to guess at his intent because of his acts. The charge was direct as to what his intent really was in the matter. The language of the opinion in the case of United States v. Sugarman, (D.C.) 245 Fed. 604, 606, is applicable on this phase of the case. There it was said: "Now, an attempt, in its very nature, includes and involves intent. So that it seems to me that, when the indictment alleged that there was an attempt to do a certain thing, it also, though not in so many words, stated that he intended to do that certain thing. So that it seems to me it was not necessary, in addition to the words used, that there should have been any allegation that in attempting to do a certain thing he was intending to do that certain thing, because the two, under the circumstances, are practically synonymous." Here the charge is that the defendant proclaimed what he was going to do and then proceeded to try to do it. The circumstances in this case are even stronger than those involved in the Sugarman Case, supra. See, also, the following cases: State v. Daly, 41 Or. 515, 70 P. 706; Fowler v. State, 66 Tex. Cr. 500, 148 S.W. 576; Cirul v. State, 83 Tex. Cr. 8, 200 S.W. 1088; State v. Evans, supra; 2 Bishop, Crim. Proc., secs. 88, 89.
The contention that the information was too indefinite and [2] uncertain as to the acts charged cannot be sustained either. Defendant contended that it was impossible for him to know what acts he would be called upon to defend against. Technically speaking, it was impossible for him to know just exactly what acts in furtherance of his general purpose he was charged with having done, but the major act was charged and if he desired specific information further than the information disclosed, he had a right to demand a bill of particulars. This court has specifically recognized that right in several cases. ( State v. Shannon, 95 Mont. 280, 26 P.2d 360, 362, and cases there cited.) In the Shannon Case a quotation was made from a previous opinion ( State v. Gondeiro, 82 Mont. 530, 268 P. 507), as follows: "When it is apparent to the court that the defendant, by reason of the general character of the charge, may have difficulty in preparing his defense, we think the trial judge should incline toward granting a motion for a bill of particulars; we commend the practice."
Defendant insists that the court should have required the county attorney to amend the information so as to make it more specific instead of proceeding on what might afterwards turn out to be a bad information. We do not agree with this contention. If the defendant required more information, he had a right to apply for a bill of particulars. The opinion in the Shannon Case, supra, called attention to the fact that the modern tendency of criminal procedure has been distinctly towards simplification. Certainly the information in this case is much more specific than that required in crimes of a more serious nature. As we have indicated, the information could hardly have been made more specific without pleading the evidence, and that, of course, was unnecessary and would have been improper. We therefore say the information was sufficient.
The charge that the evidence is not sufficient to support the [3] verdict is not borne out by the record. It is not necessary to recite the evidence at length. It is sufficient to say that the jury believed the prosecutrix, as is indicated by the verdict. She testified that she was badly beaten in the fight that ensued when she took her stand in defense of her right to refuse the demand for sexual intercourse. Many other witnesses testified as to her physical condition immediately after the occurrence. In the attempt to enforce his demands defendant early abandoned the "arts" of the seducer and immediately fell back upon the "weapons" of primitive man who knew no law except that "Might makes right." From the circumstances as detailed it is apparent that defendant was resolved to use, and did use, all the force at his command to carry out his design. His intent could only be determined by what he did. It was the duty of the jury to decide this from the facts and circumstances. It could not be a question for this court in the light of the fact that there was actually such evidence in the record on the point. ( People v. Moore, 155 Cal. 237, 100 P. 688; People v. Webster, 111 Cal. 381, 43 P. 1114; People v. Mit Singh, 59 Cal.App. 64, 209 P. 1013.)
The only defense urged in behalf of the defendant was that he [4] was intoxicated and that he did not know what he was doing. Subdivision 1 of section 10728, Revised Codes, provides: "No act committed by a person while in a state of voluntary intoxication is less criminal by his being in said condition. But, whenever the actual existence of any particular purpose, motive, or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act."
As bearing on the question of intoxication and the ability of the defendant to know and understand what he was doing, it is important to observe that the record discloses that in the perpetration of the attempt, and immediately thereafter, defendant did many things which tend to throw some light upon his mental capacity at the time. Before he committed the act he was able to drive to a place which he thought suitable for his purpose. In the course of the struggle he was able to get around with considerable agility, and was able to direct his effort toward overcoming the resistance of prosecutrix. Apparently the struggle continued in such a violent manner that at the end thereof defendant could have accomplished his purpose but for the fact that he was physically exhausted. After this, defendant was able to recover the shoes of the prosecutrix which he had thrown away during the struggle. He realized that she was in such a "bloody mess" that it might have been unwise to take her to her home. He offered to take her downtown and have her washed up; however, she refused and insisted that she be taken home. From her home defendant was able to drive to his hotel in Missoula, a distance of a mile and a half or more from the encounter. He was able to find his room and undress himself for bed.
From this summary of what happened at the scene of the crime and thereafter it seems reasonable to believe that the jury had basis for the exercise of their prerogative. They had a right to believe that in spite of his alleged drunken condition the defendant knew what he was trying to do and was responsible. At best, the point was in controversy. The facts speak on one side, while, on the other hand, the defendant proclaims his incapacity. The verdict of the jury in such circumstances should not be disturbed.
The other specification of error involves the refusal of the [5] court to give two certain instructions offered by the defendant. These instructions bore on the question of intoxication and the alleged irresponsibility of the defendant for his acts as a result thereof.
We have examined all of the instructions given and conclude that, as a whole, they fairly covered and adequately expressed the law applicable to the case under the evidence given by the witnesses. The court did instruct on the question of intoxication. It gave the provision of the statute (subd. 1, sec. 10728, supra) as an instruction on the subject. Generally, courts do not approve of giving abstract propositions of law as instructions to juries. Here, however, the statute appears to have been entirely appropriate and all that was required in the circumstances. California has the identical statute, and the courts of that state have approved the giving of it as an instruction to a jury. (8 Cal. Jur., sec. 379, p. 332.)
In another instruction the court advised the jury on the [6] question of intent as follows: "You are instructed that a specific intent to rape is an absolutely essential ingredient to an attempt to rape and must accompany the means to effect the crime." We are of the opinion that the instructions fully covered the special defense asserted by the defendant and that the court's refusal to give the offered instructions was without prejudice to defendant's case.
No error appearing, the judgment and order are affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES ANDERSON, MORRIS and ANGSTMAN concur.