State v. Hanlon

The opinion of the court was delivered by Ross, J. This is an indictment for an assault with the intent to commit a rape under E. L. 4117. The indictment follows substantially the language of the statute. I. The respondent has filed a motion in arrest of j udgment and sentence for the insufficiency of the indictment. The offense covered by the statute and charged in the indictment consists of an intent to commit a rape, accompanied by an assault made to carry into execution the unlawful intent. The crime of rape is not charged, but an intent to commit it. By the statute, there are no particulars indicative of, or accompanying the intent, except an assault upon a female. These are charged in the indictment. It being the charge of an attempt only to commit a crime, there are included in it no particulars of the substantive offense attempted to bo committed. Hence none can be set forth in the indictment. Bishop’s Directions and Forms, ss. 100 and 911; 2 Bish. Grim. Proc. ss. 76, 97. Nor is it necessary that such language should be used as is required to set forth the commission of the substantive offense attempted. It is only the intent that is charged, and that is charged in clear, unmistakable language. The respondent could be in no doubt in regard to the intention with which he is charged. The charge that he intended to ravish the assaulted forcibly would not add in the least to the charge in the indictment, nor furnish the respondent [338] with an additional particular of the charge he is called upon to answer. But it is contended that the assault is insufficiently-charged, because the means used in making it are not set forth. But this is not necessary. 2 Bish. Crim. Proc. s. 56 ; State v. Burt, 25 Vt. 373. In State v. Burt, the means used in making the assault were not set forth. The indictment charged an assault without more in that respect, but undertook to charge the impeding of the officer. The indictment was so defectively drawn that all therein relating to the latter offense was treated as surplusage, and yet on a motion in arrest of sentence it was held sufficient to sustain the charge of simple assault. The statute having described all the substantial elements of the offense, it is sufficient to charge it in the language of the statute. State v. Dagley, 41 Vt. 564 ; State v. Cook, 38 Vt. 437; State v. Jones, 33 Vt. 443 ; State v. Clark, 44 Vt. 636 ; State v. Higgins, 53 Vt. 199 ; State v. Dana, 59 Vt. 614; State v. Mills, 60 Vt. 90; Commonwealth v. Doherty, 10 Cush. 52 ; Lewis v. State, 35 Ala. 380 ; People v. Gin, 53 Col. 629. State v. Blake, 39 Me. 322, especially relied upon by the respondent, appears to have been decided on the peculiar wording of the statute of that State. If that decision is adverse to the views we have expressed, it is against the weight of authority, and we decline to follow it. The exception to the failure to comply with respondent’s ninth request and to overruling the motion in arrest, which raise the same question, is not sustained. II. The respondent’s other requests, which were not complied with, relate to the effect of drunkenness, as bearing upon the proof necessary to establish the offense charged. We are aware that courts of other jurisdictions are at variance with the decision of this court in State v. Tatro, 50 Vt. 491. That is a recent decision, arrived at after full consideration, and we have no inclination to depart from or overrule it. It bears directly upon the subject of premeditation or intention, and fully sustains the action of the trial court. The trial judge in that case was very explicit in his charge, that if the jury found that the respondent [339] was crazy drunk when he committed the homicide, so that he did not know what he was doing, his acts were to be considered upon the question of premeditation or intention, the same as they would be if he was perfectly sober. This was the substance of the charge in the case. This exception is not sustained. Nor do we regard the closing paragraph of the charge as misleading when reference is had to the undisputed facts in the case. The respondent himself claimed to have no recollection of what he did upon the occasion of the assault. The female assaulted and the persons with the respondent substantially agreed, so far as the persons with the respondent were present. There was really no contention in regard to the assault having been made. The controversy was in regard to the intention with which the respondent made the assault. In the next preceding clause the court instructed the jury that this must be established beyond a reasonable doubt, and, in the clause criticised, told them in substance that unless, from what he did and said, they found such intent established, they should acquit the respondent. If the respondent had claimed to have had knowledge or recollection of the intent with which he made the assault, the criticism would be entitled to more consideration. This portion of the charge was adapted to the facts disclosed by the evidence and could not have misled the jury. III. It is contended that the court erred in not charging the jury they might find the respondent guilty of simple assault if they failed to find him guilty of the higher offense. He made no request on this subject, and was not injured by a charge which allowed his acquittal unless the jury, on the evidence, found the higher crime charged established. Commonwealth v. Doherty, supra. The respondent tahes nothing by his exceptions.