Daggs v. Territory of Arizona

NAVE, J. — R. E. Daggs was found guilty and sentenced for assault with intent to commit rape. From the judgment of conviction, he has appealed. Among numerous assignments of error the only one we shall consider is that the court erred in overruling the general demurrer to the indictment. The charging part of the indictment is: “The said R. E. Daggs . . . did unlawfully, willfully, and feloniously make an assault in and upon the person of one Esther Power, a female, with intent then and there upon the part of him, the said R. E. Daggs, to commit the offense of rape upon said Esther Power, by then and there without the consent of the said Esther Power, by force, threats, and violence, attempting to have sexual intercourse, with her, the said Esther Power, she, the said Esther Power, not being then and there the wife of the said R. E. Daggs.” We interpret the expression “by then and there without the consent of the said Esther Power, by force, threats, and violence, attempting to have sexual intercourse with her,” as intended to specify the acts of the defendant upon which it is predicated that he committed an assault with intent to commit rape. The question, therefore, arises whether, if the acts were committed as charged, the defendant was guilty of assault with intent to commit rape. Our attention is directed by respondent to the decision of the supreme court of Oklahoma in Harmon v. Territory, 5 Okl. 368, 49 Pac. 55, from which it would appear that the pleader may have copied the indictment now before us. In that case the indictment was held sufficient to charge the offense. Our statutes, in so far [449] as they are here concerned, are identical with the statutes of Oklahoma. By these statutes rape is defined to be “an act of sexual intercourse accomplished with a female not the wife of the perpetrator under either of” several circumstances, among them, “where she resists, but her resistance is overcome by force or violence.” It seems manifest that the rape which the grand jury assumed was intended by the defendant was a rape under circumstances covered by the portion of the statute just quoted. The pleading charges, however, merely an attempt by force, threats, and violence to have sexual intercourse with the woman without her consent. It fails to charge that the intent was to accomplish an act of sexual intercourse against her resistance, and does not even charge that it was intended to accomplish it against her consent. It is entirely consistent with the allegations of the indictment that Daggs may have attempted sexual intercourse with the woman without gaining her consent, but without an accompanying intention to press his force, threats or violence to the point of overcoming her active resistance, or even of overcoming her dissent. We entertain the view that, for the reasons thus outlined, the indictment does not charge a public offense. Wherefore the trial court erred in overruling the demurrer thereto. The judgment of the district court will be reversed, and the defendant ordered discharged. SLOAN and CAMPBELL, JJ., concur.