People v. Spady

NEEDHAM, J., pro tem.

The defendant was charged by information with the crime of assault with intent to commit rape. He was convicted of that crime and now appeals from the final judgment and from the order denying his motion for a new trial. The prosecuting witness is the defendant’s daughter, fourteen years of age.

The first point presented by the defendant is the alleged misconduct of a juror, who, during the course of the trial and while a witness was on the stand, left his seat for the purpose of adjusting one of the courtroom windows. The court immediately admonished the juror, and said, “Mr. Reporter, will you turn back and read that question again?” The question was re-read by the reporter. The court thereupon sustained an objection to the question. It is evident from the record that if in fact the juror did not hear the question while he was adjusting the window, the court had the question re-read, for the evident purpose so that the juror should not miss whatever he possibly may not have heard while he was adjusting the window. The fact that the question was not allowed makes it manifest that the action of the juror in leaving his seat and adjusting the window was in nowise prejudicial to the rights of the defendant.

The next point made by the defendant is that the court erred by not instructing the jury that they might find the defendant guilty of simple assault, and the defendant in support of that contention cites sections 1157 and 1159 of the Penal Code. Section 1157 of the Penal Code reads as follows: “Whenever a crime is distinguished into degrees,

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the jury, if they convict the defendant, must find the degree of the crime of which'he is guilty.” The crime of assault to commit rape (section 220 of the Penal Code) is not divided into degrees, and, therefore, section 1157 of the Penal Code cannot apply to this case. Neither does section 1159 of the Penal Code apply, and it is so decided in the case of

People

v.

Gomes,

118 Cal. 326 [50 Pac. 427], It is therein held that assault is not an element of “assault with intent to commit rape” where the prosecuting witness is under the age of consent. It is stated in that case: “It is claimed that the court committed an error in charging the jury that their verdict should be either guilty of the offense charged, or not guilty. It is insisted that by such charge the court in effect told the jury that the offense of ‘assault’ was not included in the information. We assume that such was the effect of the instruction, and yet upon such assumption the charge given was the only proper one. The prosecutrix was a girl under the age of consent. Whatever occurred between her and the defendant took place with her entire free will. . . . Under such circumstances, the offense of ‘assault’ is not in the ease. The evidence in no way points toward it; for an attempt to use force is a necessary element to every assault. Here, there is no pretense of such an attempt.”