People v. Meichtry

SHENK, J.

The defendant appealed from a judgment entered on a verdict of guilty of assault with intent to commit rape. He questions the sufficiency of the evidence to support the implied finding that he had the intent as charged. He also claims that there was prejudicial error in the giving of instructions and that he was prevented from having a fair trial by asserted misconduct of the district attorney. He seeks a reversal of the judgment or a reduction of the degree of the crime to that of simple assault.

The information charged that the defendant committed the crime of assault with intent to commit rape on Bertha Kieber on November 19,1949. The jury found him guilty as charged.

The defendant is 51 years of age, is married and has a young daughter. He is Bertha Kieber’s uncle and godfather. He had lived in the home of Bertha’s father for about 10

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years prior to the establishment of his own home. Bertha was 29 years of age, married and the mother of a 2-year-old boy. Their homes were a few miles apart.

The Kiebers had been working on the construction of their home with some help from the defendant. About 10:30 on the morning of November 19, 1949, after Bertha’s husband and her brother-in-law, who had quarters in a separate house on the premises, had left for their employment, the defendant called unexpectedly. Bertha offered him coffee which he refused because he had had beer. The young son was playing in a pen in the yard. The record shows that after some general conversation concerning domestic matters and construction details the defendant made improper advances toward Bertha; that he pushed her into the bedroom and on to the bed; that she kicked and otherwise struggled; that the defendant released her only when she feigned alarm by saying that someone was coming and she ran into the kitchen; that in the kitchen she slapped him and told him to leave and that he left about noon. She told her husband of the incident on his return from employment and they reported the matter to the police. Bruises appeared on Bertha’s right arm, she complained of internal injuries and went to a physician for examination.

The defendant was apprehended and he related to the officers a story substantiating the details reported by Bertha. In explanation of why he did it, he said he thought “Bertha was ready” and that he “could make out with her.” He admitted that she struggled and that the struggle was broken when she said someone was coming. On the stand he told a different story implying that Bertha, rather than he, was the intending paramour.