State v. Vorey

Mitchell, J. Under Penal Code, § 235, there are five several distinct acts or ways by which a person may commit the crime of rape, the second of which is when the resistance of the female is overcome by force, and the third “when her resistance is prevented by fear of immediate and great bodily harm which she has reasonable cause to [136] believe will be inflicted upon her.” The indictment should charge the acts constituting the alleged rape so as to advise the'accused in which one of these different ways he is charged with having committed the crime. State v. Henn, 39 Minn. 464; (40 N. W. Rep. 564;) People v. Demar, 106 N. Y. 502; People v. Dimick, 107 N. Y. 13. The indictment in this case was evidently framed as an indictment under the third subdivision of the section, viz., where the resistance of the female was prevented by fear, etc., and, if good at all, it is under that subdivision. The allegations peculiar to an indictment for rape committed in that way cannot be treated as surplus-age; and, even if they could, there would not be enough left in this case to constitute a good indictment under the second subdivision. Upon the trial the court instructed the jury that there was no evidence to justify a conviction under the third subdivision, "but that they might convict the defendant, under the second subdivision, of rape committed by overcoming the resistance of the prosecutrix by force. This last was clearly error, because, for the reasons already suggested, this was not the offence charged in the indictment. Judgment reversed.