People v. Green

GRAY, P. J.

On a charge of assault with intent to commit rape upon a girl under the age of consent, the defendant was convicted of simple assault and sentenced to forty-five days in the county jail. He appeals from the judgment and from an order denying him a new trial.

[433]

At the request of defendant the jury were instructed that they could find the defendant guilty of simple assault.

The evidence consisted principally of the testimony of the prosecutrix, setting forth facts which, if fully believe, should have satisfied the jury that the defendant was guilty of the very crime charged in the information, and the testimony of defendant in denial of the more material parts of the testimony of the prosecutrix. It is clear that if the defendant had been convicted of the greater crime of assault with intent to commit rape, such verdict would on appeal have been treated as supported by the evidence. It is also clear that the evidence of the attempt to ravish contained in the record showed that such attempt was instituted with a violent assault and battery, and involved a continuous violent assault from its beginning up to the time the attempt was abandoned, on the approach of the mother of the girl. It is clear on the testimony of the prosecutrix that the defendant assaulted her, and it was none the less an assault because the defendant may have intended also to effect a sexual connection with her. An assault with intent to ravish, committed as indicated by the testimony of the prosecutrix herein, always includes an assault. It was for the jury to say whether this .assault was accompanied by the intent necessary to constitute the higher crime. By finding the defendant guilty of simple assault, the verdict shows us that the jury saw fit to believe ■only that part of the story of prosecutrix that established an assault, and rejected everything that indicated an intent to ravish, refusing to draw any inference of a felonious purpose ■on the part of defendant. This the jury had the power to do. There is no rule of law requiring the verdict of a jury to be absolutely consistent, according to the ideas of the appellate court. It is the province of the jury to draw their own conclusions from the evidence, and where, as here, they are instructed that they may do so, it is for them to say that the defendant is guilty of one crime and not guilty of another, ■as they see fit. And this court will only interfere with a verdict of guilty of assault where there is no evidence showing that an assault was committed. An indecent assault always embraces a simple assault, on the theory that the greater includes the less.