People v. Wilson
Before: Haynes
Synopsis
Criminal Law—Assault with Intent to Commit Crime against Nature —Sufficiency of Evidence—Questions for Jury.—Upon the trial of a defendant accused of an assault with intent to commit the infamous crime against nature, where there is evidence tending to show that defendant, after having unsuccessfully solicited consent to the act by the person upon whom the alleged assault was made, grabbed him and tried to roll him over; that he resisted and made some noise, and the defendant then desisted, and said he would not make him do it if he didn't want to, it is a question of fact for the jury whether the force testified to was used, and also what was the intent with which it was done, and the evidence was sufficient, if believed by the jury, to justify the conclusion that whatever force was used was with the intent and purpose to commit the crime alleged; and if any appreciable force was used with that intent, and the defendant desisted through fear of detection from any cause, the intended act being felonious and against the will of the prosecuting witness, it was an assault within the meaning of the Penal Code defining an assault, and defining the crime for which the defendant was prosecuted.
Id.—Fear not Essential to Assault—Feelings and Motives of Prosecuting Witness—Support of Verdict—Recommendation to Mercy.—It was not essential to the offense charged that the assault should have put the person assaulted in fear, and the questions whether his feelings were not sensitive and were not greatly outraged, and whether the fact that no bodily injury was inflicted may suggest the possibility of some improper motive for the prosecution on his part, are questions for the jury; and it is sufficient to support a verdict of guilty of the offense charged, with a recommendation of the defendant to .the extreme mercy of the court, that there was legal evidence upon which the verdict could be sustained, and that the recommendation made by the jury negatives the idea of passion or prejudice on their part.
HAYNES, C. Appellant was convicted of an assault upon one George Ryan with intent to commit the infamous crime against nature, and was sentenced to imprisonment in the state prison at Folsom for the term of live years. Defendant in due time moved for a new trial, his motion was denied, and hence this appeal.
The only point made for reversal is that the evidence is insufficient to justify the verdict.
Only two witnesses were examined, namely, the prosecuting witness and the defendant. Both were at the time of the alleged offense inmates of the county jail of the county of Merced and occupied the same cell and the same bed. The prosecuting witness, in substance, testified that the defendant solicited his consent to the act, which was refused; that defendant said: “I won’t make you do it; I never make any boy do it if he don’t want to”; that the next night he again refused the solicitations of defendant, whereupon the defendant "grabbed hold” of him and tried to roll him over, that he resisted and made some noise, and the defendant desisted; that defendant did nothing after that. Hpon cross-examination he repeated the statement of the act constituting the assault, and added: 'Tie was trying to force me that night—he tried to force me by coaxing and everything. <j. That was all—just coaxed you—just asked you? A. Yes; I said no, and he said he would not make me do it if I didn’t want to do it.”
Defendant testified that he "did not attempt to commit” said crime on the prosecuting witness. He did not say whether he made the solicitations testified to by Ryan, nor whether he took hold of him and attempted to roll him over. The jury found him guilty and recommended him "to the extreme mercy of the court.”
It is contended that there was no assault within the meaning of section 240 of the Penal Code, and that the evidence is insufficient to show that the physical act, alleged to constitute the assault, was committed with the intent charged in the information.
"Whether appellant "grabbed hold” of the prosecuting witness, and attempted to turn him over was a question of fact for the jury to determine, as was also the question as to the intent with which it was done. The instructions given by the court to the [386]jury are not brought up in the record, and we must therefore assume that under proper instructions the jury found both of those facts against the defendant, for without such finding, the jury being properly instructed, the conclusion of guilt could not be reached.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)