State v. Delvecchio

BASKIN, J. The information alleged that the defend- and “on the twenty-first day of July, A. D. 1901, at Salt Lake county, State of Utah, in and upon one Bertha West-lund, a female, not the wife of the said Vedo Delveechio, unlawfully, forcibly, and feloniously did make an assault, with the intent then and there the said Bertha Westlund, unlawfully, forcibly, and feloniously, to ravish and carnally know, and her, the said Bertha Westlund, then and there, against her will and without her consent, unlawfully, forcibly, and felo-niously did ravish and carnally know, contrary to the form of the statutes of the State aforesaid in such cases made and provided, and against the peace and dignity of the State of Utah.” The jury having found him guilty, a motion in arrest of judgment was made. The grounds stated in the motion were “that the information in this case fails to state facts sufficient to constitute a public offense, or of the offense of rape sought to be charged in said information, or to state sufficient or any facts so that the defendant herein can understand the [20] nature of the charge against him.” The overruling of the motion is assigned as error. 1. Section 4217 of the Revised Statutes defines rape to be “an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under.either of the following circumstances,” among which the third is, “where she 1 resists but her resistance is overcome by force or violence.” The objection urged by defendant’s counsel is that the information fails to allege that the said Bertha Westlund resisted, and that her resistance was overcome by defendant’s force or violence. While it is better and safer practice, when the crime committed is defined by a statute, and all of its 2 constituent elements are therein specifically set out, to charge it in the indictment or information in the language of the statute, it may be properly charged in other words of equivalent import. 10 Enc. Pl. and. Prac., 483 et seq. We are of the opinion that the language in which the defendant is charged with having unlawfully, forcibly, feloniously, and against the will and without the consent of the said Bertha Westlund, committed the acts of ravishment and carnal knowledge, is substantially equivalent to stating that she resisted, but her resistance was overcome by force. It was so held, under provisions the same as those of section 4217, before quoted, in the cases of People v. Pacheco, 70 Cal. 473, 11 Pac. 761, and Harmon v. Territory (Okl.), 49 Pac. 55. The motion in arrest of judgment was therefore properly overruled. 2. The other errors assigned are based upon the action of the trial court in giving and refusing to give certain instructions, and in admitting and refusing to admit certain evidence. It does not appear from the record that the instructions given and complained of were requested in writing 3 by either party; nor does it appear that those which were refused were requested in writing by the defendant, or that he requested them at all; nor does the record contain any [21] bill of exceptions, settled, signed, and filed as required by section 4946, Eevised Statutes. What purports to be a bill of exceptions consists of a transcript of tie official stenographer’s notes of the evidence and proceedings at the trial. These notes are not authenticated, except by the certificate of the stenographer. Under the provisions of Criminal Code, chapter 39 (Rev. St., p. 1012), the evidence which was admitted and that which was rejected, and the instructions given and those which were refused, not being embodied in a bill of exceptions, form no part of the record. An appellate court is authorized only to decide questions presented by the record. We can not, therefore, consider any of the objections which are based upon the evidence, or upon the instructions given or refused. It is ordered that the judgment be affirmed, and the case remanded for further proceedings in accordance with law. MINEE, C. J., and BAETCH, J., concur.