People v. Fleming

Garoutte, J. The defendant was convicted of an assault with intent to commit rape, and now appeals from the judgment and order denying his motion for a new trial. The prosecuting witness was a servant girl of the age of twenty-four years, doing the housework for defendant and his family.

The errors of law relied upon by counsel for a reversal of the judgment are not well taken, and the only question remaining is, whether or not the evidence is sufficient to support the verdict of the jury. The events which occurred at the time the alleged assault was committed, as depicted by the prosecuting witness and the defendant, are directly contradictory in all essentials, and under those circumstances the finding of the jury to the extent that it involved the veracity of these two parties will not be disturbed. The testimony, as disclosed by the record upon all salient matters pertaining to the commission of the offense, consists of the evidence of the prosecuting witness alone; still, if her evidence was sufficient to prove the crime, and the jury gave credence to it, the verdict should be upheld. (People v. Mayes, 66 Cal. 597; 56 Am. Rep. 126.) After a careful examination of the evidence of the prosecuting witness, conceding it to be true in all particulars, we conclude [311]that it does not establish a prima facie case of the crime of assault with intent to commit rape.

Section 261 of the Penal Code reads: “Pape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: .... 3. Where she resists, but her resistance is overcome by force or violence.”

In Pus sell on Crimes, 692, the author quotes with approval the principle laid down in Rex v. Loyd, 7 Car. & P. 318, wherein it was held: “In order to find the prisoner guilty of an assault to commit a rape, you (the jury) must be satisfied that the prisoner, when he had hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do.so at all events, and notwithstanding any resistance on her part.” In the case of State v. Hagerman, 47 Iowa, 152, the court said: “ The assault must have been made with intent to commit a rape, notwithstanding all possible resistance that could be made. The intent must have been to perpetrate the crime at all events, regardless of what the prosecutrix might or could do to prevent it.” This principle of law is supported by the great weight of authority, and cannot be questioned. It would subserve no good purpose here to recite the evidence of the prosecutrix as to the res gestee of the accusation. By her testimony it is apparent that defendant desired to have sexual intercourse with her, and that he committed either an assault or a battery upon her, of a technical character at least, while engaged in his solicitations and blandishments, but these things may all be true and be entirely foreign to any intention on his part to commit the crime of rape by the use of force to the extent of overcoming all resistance she might offer.