People v. Furrh

PEEK, J. Defendant appeals from a judgment of conviction of the crime of assault with intent to commit rape and from the order denying his motion for a new trial. TTis [742]various contentions may be stated generally to be (1) that the evidence is insufficient to support the conviction of the crime of assault with intent to commit rape; (2) that the trial court erred in [a] refusing to permit testimony concerning previous conduct of the prosecutrix and [b] in refusing testimony concerning her morality; and (3) that the trial court erred in the giving of certain instructions and in the failure to give others.

The record discloses testimony by the prosecutrix that the defendant instead of driving her home from a bar where they met, and as she had expected, turned his car off the highway onto a side road in an uninhabited area, and against her will and continuing protests physically held her in the ear and ultimately accomplished an act of intercourse. The defendant, testifying in his own behalf, admitted that an act of intercourse occurred but contended that it was with the consent of the prosecutrix. When the sheriff appeared at the home of defendant with a warrant to arrest him, he fled, was not apprehended until the following day and when interrogated by the officers gave different and conflicting accounts of the circumstances surrounding the crime charged.

Defendant first argues that since admittedly an act of intercourse was consummated, the sole question remaining was whether it was accomplished with or without the consent of the prosecutrix; and since assault to commit rape is an incomplete rape, therefore there was no evidence to support the charge, and it was error for the court to instruct the jury on that crime.

The essential element of the offense of assault with intent to commit rape is “. . . the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required.” (People v. Meichtry, 37 Cal.2d 385, 388 [231 P.2d 847].) But whether the crime committed was rape or assault with intent to commit rape was a question of fact for the jury to resolve. Under the facts and circumstances of the present case it could have been either. The fact that admittedly the act was consummated did not take from the case the element of assault. While the consent of the prosecutrix or the degree of her resistance at a time prior to the actual consummation of the act might preclude a conviction of rape, it could not relate back so as to preclude a conviction of assault with the intent