State v. Haugh

McClain, C. J. The defendant, under sixteen years of age, was found guilty of the crime of assault with intent to commit rape on the prosecuting witness, who, at the time of the alleged assault, was twelve years of age. I. Criminal law: of?ense“duded instruction. I. The contention for appellant is that the verdict is without support in the evidence, predicated upon the claim that under the record the defendant, if guilty in any degree, was guilty of rape, and, as the jury found him guilty only of an assault with intent to commit rape, there was such inconsistency between the evidence and the verdict as to require a reversal. The court instructed the jury that they might consider whether the defendant was guilty of an assault with intent to commit rape, if they found that rape had not been committed, fully instructing as to the included crime. As the evidence tended to show guilt of the crime with intent to commit rape, the verdict was not without support in the evidence, nor. was it unauthorized by the instructions. The error, if any, committed in this respect was in s‘o instructing the jury that there might be a conviction of an assault with intent to commit rape, although the evidence showed that, if any crime whatever was committed, it amounted to the crime of rape, as charged. It may be that if the .court had failed to instruct with reference to an assault with intent to commit rape, and the defendant had been convicted of the crime of rape, we would have been justified in saying that there was no error for the reason the jury could not under the evidence have properly returned a verdict of an assault with intent to commit rape. But the converse is not necessarily true. We have never held that it constitutes prejudicial error to instruct with reference to an included crime, even though under the evidence a’ conviction for the crime charged, without [641] an instruction as to the included crime, would have been sustained. It does not lie in the mouth of the defendant to complain that he has been convicted of a lower degree of crime than that which the evidence tends to -establish. It is not to be presumed from the fact that the jury failed to convict of rape that they did convict of an assault with intent to commit rape without finding from the evidence beyond a reasonable doubt that the defendant was guilty of that crime. If the jury exercised undue leniency in their finding as to the degree of the crime committed, such error has resulted to defendant’s benefit, and he can not complain. It is enough to say that, so far as the general sufficiency of the evidence is concerned, the verdict is not without ample support. corroborating evidence. II. The corroboration required by the statute to connect the defendant with the commission of the crime which the prpsecutrix testified was committed upon her was not wanting. Although the defendant denied his presence at the time and place where, as the prosecutrix testified, the crime was committed, and offered evidence tending to establish an alibi, counsel for defendant attempted by cross-examination of the prosecutrix and her mother to whom complaint was at once made, to establish that both of them had prior to the indictment spoken of the difficulty between the defendant and the prosecutrix as being in the nature of a fight rather than an attempt to commit rape, and a witness for the defense, at whose home the defendant lived, testified that the complaint at once made by the father of the prosecutrix to him with reference to the misconduct of the defendant related only to a fight. But it is not pretended that the evidence points to, or suggests, any other ground of complaint of misconduct on the part of the defendant toward the prosecutrix than that which was charged to have constituted the crime of rape.. A witness for the prosecutrix testified that he had 'a [642] conversation with the defendant about the trouble between him and the prosecutrix in which the defendant admitted that he had sexual connection with the prosecutrix, although the time and place was not specified. It is true that this witness was somewhat confused in his testimony on cross-examination, but from his testimony as a whole the jury was justified, in believing that such an admission was made by defendant, and that it related to the occasion described by the prosecutrix. The deputy sheriff also testified as a witness that, when he arrested the defendant under a warrant “with reference to the trouble with” the prosecutrix, defendant, on being told what the warrant was for, stated that “he would not have done it if she had not asked him to.” Clearly these admissions by the defendant were sufficient to constitute the corroborating evidence required by statute. 3. New triai«j misconduct 'in argument. III. There is complaint of misconduct on the part of the county attorney in saying to the jury that the defendant-was guilty beyond a reasonable doubt, and that he should be convicted in order “to protect the young girls in this county.” There was no occa sion for the county attorney to inform the jury as to his own conclusions with reference to the guilt of the defendant, but it certainly did not constitute a ground for a new trial if he did so, nor if he urged the jury to prevent the commission of similar offenses by the defendant or others by finding the defendant guilty. It must be presumed that the jury well understood that the conclusions, of the county attorney were entitled to no weight whatever in their subsequent deliberations, and that the object of punishing the defendant, if they found him to be guilty of the crime charged, was to prevent, so far as practicable, the commission of similar crimes. [643] 4. Evidence: exhibits. [642] IV. The drawers worn by the prosecutrix at the time of the alleged commission of the crime were received in evidence over defendant’s objection, showing blood spots. The circumstances testified to by the prosecutrix and her [643] mother as to the time when the blood spots were first observed were such as to materially weaken the weight of the evidence in this respect, but they were not such as to deprive it entirely of probative force. Without discussing the details of the evidence, it is sufficient to state our conclusion that the exhibit was properly received and the court properly instructed the jury with reference thereto. Other complaints are made of the instructions,, but they relate to objects which so far as they are not covered by the previous discussion appear, from the record to be entirely without merit. — Judgment is affirmed.