People v. Egan

KNIGHT, J.

Appellant was charged by information with having committed an assault with intent to commit rape. At the conclusion of the evidence the court withdrew from the consideration of the jury the higher grade of crime charged and restricted the issue to “simple” assault by submitting to the jury but two forms of verdict, one reading: “Guilty of Misdemeanor, to-wit: simple assault”; and the other: “Not guilty.” The jury agreed upon and returned the former, and appellant was sentenced to imprisonment in the county jail, and thereafter took this appeal from the judgment of conviction.

Briefly stated, the facts established at the trial by the prosecution were as follows: The appellant and the prosecutrix, a Mrs. Ethel Schmilk, occupied different living apartments in the same building. Appellant had' entertained some friends at a party held in his apartment during the night, and the next morning about 9:30 o’clock, while still intoxicated, went to the apartment occupied by the prosecutrix, dressed only in his underclothes, knocked at the door, and when the prosecutrix, who was fully dressed, having just come in from shopping, opened the door appellant seized her and started to force her down the hallway toward his room. She screamed and during the struggle which followed she was either Imocked or fell to the floor. Appellant tried to muffle her screams, but finally released her and she ran into the street. Some of the neighbors heard her screams and came to her assistance. They summoned two police officers, and upon the arrival of the latter appellant was found in his room partially disrobed, and in conversation with the officers he admitted having acted in the manner described by the prosecutrix and stated the purpose he had in mind in attempting to force her into his room. He was placed under arrest and later formally charged with an assault with intent to commit rape.

The first contention made is that the allegations of the information are insufficient to charge an assault and that there is no such crime as “simple” assault of which appellant was convicted. We find no merit in either point.

[47]

It may be easily gathered from the allegations of the information that appellant was charged with having wilfully and unlawfully attempted, coupled with a present ability, to commit a violent injury upon the person of another, and consequently the charge substantially conformed to the definition of an assault as given in section 240 of the Penal Code. As to the second point, although the Penal Code does not employ the appellation “simple” assault in denouncing as a crime the acts mentioned in said section 240, still ever since the rendition of the decision in the early case of