ing manslaughter,85 except in those states where absence of an intent to kill is an essential element of manslaughter.86 Statutes in some states expressly punish assaults with intent to commit manslaughter.87 And assaults with intent to commit murder in any degree 88 or voluntary manslaughter 89 are generally held to be within statutes punishing assaults with intent to commit any felony. § 411. - Battery; use of weapons, etc. A battery or wounding is not an essential element of the offense unless made so by the statute.90 Nor need the assault be made with a deadly weapon un As to murder in the second degree, see § 649, infra. 85 United States. Ex parte Brown, 40 Fed. 81. V. District of Columbia. Davis United States, 16 App. Cas. 442. Florida. Hall v. State, 9 Fla. 203, 76 Am. Dec. 617. Kentucky. Robinson v. Com., 16 B. Mon. (55 Ky.) 609. Nevada. State v. Marks, 15 Nev. 33; State v. O'Connor, 11 Nev. 416. New Hampshire. State v. Butman, 42 N. H. 490. Oklahoma. Tyner v. United States, 2 Okla. Cr. 689, 103 Pac. 1057. Vermont. State v. Reed, 40 Vt. 603. There may be an assault with intent to kill which does not involve an intent to murder. State v. Waters, 39 Me. 54. 86 Pontius v. People, 82 N. Y. 339; Slatterly v. People, 58 N. Y. 354. Under such circumstances a person cannot be convicted of assault with intent to kill under an indictment for manslaughter. People v. Santoro, 229 N. Y. 277, 128 N. E. 234, rev'g 190 App. Div. 56, 179 N. Y. Supp. 382. As to whether the absence of an intent to kill is an essential element of manslaughter, see § 654, infra. 87 See § 408, supra. 88 Feagle v. State, 55 Fla. 13, 46 So. 182; Lindsey v. State, 53 Fla. 56, 43 So. 87; Pyke v. State, 47 Fla. 93, 36 So. 577; State v. Throckmorton, 53 Ind. 354; State v. Kesler, 8 Blackf. (Ind.) 575; Stevens v. State, 91 Tenn. 726, 20 S. W. 423; Smith v. State, 2 Lea (70 Tenn.) 614; Ivey v. State, 24 Wyo. 1, 154 Pac. 589; Brantley v. State, 9 Wyo. 102, 61 Pac. 139. 89 Florida. Griffin v. State, 72 Fla. 79, 72 So. 474; Feagle v. State, 55 Fla. 13, 46 So. 182; Lindsey v. State, 53 Fla. 56, 43 So. 87; Williams v. State, 41 Fla. 295, 26 So. 184. Indiana. Keesier v. State, 154 Ind. 242, 56 N. E. 232; State v. Throckmorton, 53 Ind. 354. Iowa. State v. McGuire, 87 Iowa 142, 54 N. W. 202; State v. White, 45 Iowa 325. New Hampshire. State v. Calligan, 17 N. H. 253. Tennessee. Stevens v. State, 91 Tenn. 726, 20 S. W. 423; Smith v. State, 2 Lea (70 Tenn.) 614; State v. Williams, 5 Baxt. (64 Tenn.) 655. Wyoming. Ivey v. State, 24 Wyo. 1, 154 Pac. 589; Brantley v. State, 9 Wyo. 102, 61 Pac. 139. less the statute so provides.91 In some states there are statutes making it an offense to shoot, or shoot at, or attempt to shoot at, another with intent to kill,92 or to commit murder,93 or to wound another with intent to kill him,94 or to assault another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death, with intent to kill,95 or to maliciously commit an assault and battery with a deadly weapon upon another by waylaying, or otherwise in a secret manner, with intent to kill,9 96 or to administer poison to another with intent to kill him, where death does not result.97 And to warrant a conviction under provisions of this character all of the statutory elements of the offense must be shown.98 § 412. Assault with intent to commit rape. To constitute an assault with intent to commit rape there must be an assault,99 and also a specific intent to rape. To constitute rape the intercourse must 94, 32 So. 110; Peterson v. State, 41 Fla. 285, 26 So. 709. Illinois. Davids v. People, 192 Ill. 176, 61 N. E. 537; Conn. v. People, 116 Ill. 458, 6 N. E. 463. Mississippi. Montgomery v. State, 85 Miss. 330, 37 So. 835. Missouri. State v. Mulhall, 199 Mo. 202, 97 S. W. 583, 7 L. R. A. (N. S.) 630, 8 Ann. Cas. 781; State v. Agee, 68 Mo. 264. Texas. State v. Johnston, 11 Tex. 22; Olds v. State, 54 Tex. Cr. 411, 113 S. W. 272. 91 Lindsey v. State, 53 Fla. 56, 43 So. 87; Pyke v. State, 47 Fla. 93, 36 So. 577; Gray v. State, 44 Fla. 436, 33 So. 295. 92 Robinson v. Com., 16 B. Mon. (55 Ky.) 609; State v. Vaughn, 26 Mo. 29; State v. Cruikshank, 13 N. D. 337, 100 N. W. 697; Harris v. State, 15 Okla. Cr. 369, 177 Pac. 122; Feaster v. State, 15 Okla. Cr. 366, 177 Pac. 124; Polk v. State, 15 Okla. Cr. 324, 176 Pac. 538. To come within such a provision there must be at least an attempt to shoot. State v. Gunderson, 42 N. D. 498, 173 N. W. 791; State v. Cruik shank, 13 N. D. 337, 100 N. W. 697. 93 State v. Frances, 36 La. Ann. 336. 94 See § 426, infra. 95 People v. Santoro, 229 N. Y. 277, 128 N. E. 234, rev'g 190 App. Div. 56, 179 N. Y. Supp. 382; State v. Cruik shank, 13 N. D. 337, 100 N. W. 697. 96 As to what is an assault by waylaying or a secret assault within the North Carolina statute, see State v. Bridges, 178 N. C. 733, 101 S. E. 29; State v. Knotts, 168 N. C. 173, 83 S. E. 972; State v. Whitfield, 153 N. C. 627, 69 S. E. 263; State v. King, 120 N. C. 612, 27 S. E. 120; State v. Harris, 120 N. C. 577, 26 S. E. 774; State v. Gunter, 116 N. C. 1068, 21 S. E. 674; State v. Patton, 115 N. C. 753, 20 S. E. 538; State v. Jennings, 104 N. C. 774, 10 S. E. 249. 97 People v. Santoro, 229 N. Y. 277, 128 N. E. 234, rev 'g 190 App. Div. 56, 179 N. Y. Supp. 382. Causing a person to inhale chloroform is administering poison within such a provision. People v. Tinnen, Cal. App. 192 Pac. 557. 98 See the cases cited in the preceding notes. 99 State v. Greco, 7 Boyce (Del.) as a rule, be by force and against the will of the woman,1 and therefore a man is not guilty of assault with intent to rape unless he intends to have connection with her by force and against her will, except where she is below the age of consent. And even in the latter 140, 104 Atl. 637; Liebscher v. State, 69 Neb. 395, 95 N. W. 870, 5 Ann. Cas. 351. This is true even though the girl is under the age of consent. People v. Carlson, 160 Mich. 426, 125 N. W. 361, 136 Am. St. Rep. 447; People v. Dowell, 136 Mich. 306, 99 N. W. 23; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217. 1 See § 888, infra. 2 Alabama. Jones v. State, 90 Ala. 628, 8 So. 383, 24 Am. St. Rep. 850. Arkansas. Lockett v. State, 136 Ark. 473, 207 S. W. 55; Charles v. State, 11 Ark. 389. California. People v. Moore, 155 Cal. 237, 100 Pac. 688; People v. Fleming, 94 Cal. 308, 29 Pac. 647; People v. Manchego, 80 Cal. 306, 22 Pac. 223. Delaware. State v. Greco, 7 Boyce 140, 104 Atl. 637; State v. Davis, 9 Houst. 558, 33 Atl. 439. Florida. Gadsden v. State, 77 Fla. 627, 82 So. 50. Georgia. Taylor v. State, 50 Ga. 79. Iowa. State v. Kendall, 73 Iowa 255, 34 N. W. 843, 5 Am. St. Rep. 679. Massachusetts. Com. v. Merrill, 14 Gray 415, 77 Am. Dec. 336. Mississippi. Easterling v. State, 120 Miss. 404, 82 So. 306. Missouri. State v. Priestley, 74 Mo. 24. North Carolina. State v. Mehaffey, 132 N. C. 1062, 44 S. E. 107; State v. Williams, 121 N. C. 628, 28 S. E. 405; State v. Jeffreys, 117 N. C. 743, 23 S. E. 175; State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; State v. Neely, 74 N. C. 425, 21 Am. Rep. 496. South Carolina. State v. Butler, 114 S. C. 433, 103 S. W. 762. Texas. Pefferling v. State, 40 Tex. 486; Everett v. State, 82 Tex. Cr. 407, 199 S. W. 631; Cotton v. State, 52 Tex. Cr. 55, 105 S. W. 185; Shields v. State, 32 Tex. Cr. 498, 23 S. W. 893; Carroll v. State, 24 Tex. App. 366, 6 S. W. 190; Taylor v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656. Virginia. Com. v. Fields, 4 Leigh 648. England. Rex v. Lloyd, 7 Car. & P. 318. The defendant must have intended at the time to use all the force necessary to overcome any resistance his victim might offer. State v. Eslick, Mo. App., 216 S. W. 974. If he only intends to have intercourse with her provided she consents, he cannot be convicted. Taylor v. State, 50 Ga. 79; Taff v. State, 65 Tex. Cr. 80, 143 S. W. 1156. The jury must be satisfied beyond a reasonable doubt that if the defendant had consummated his intent he would have been guilty of rape. State v. Truitt, 5 Pennew. (Del.) 466, 62 Atl. 790. But it is not essential that he should have intended that his accomplished act should be rape. Jacobi v. State, 133 Ala. 1, 32 So. 158. 3 In such case there need not be an intent to have intercourse by force, but it is sufficient if he intends to gain her consent by a course of lascivious conduct towards her. Hanes v. State, 155 Ind. 112, 57 N. E. 704. That consent is no defense to a prosecution for assault with intent to commit rape where the woman is case there must be an intent to have sexual intercourse with her. As we shall see, however, some courts hold that an attempt to have connection with a girl below the age of consent is not an assault if she consents to what is done. And a person cannot be convicted of an assault with intent to commit rape upon a child, where the completed offense would not be rape because of the age of the child, but a different offense.6 below the age of consent, see § 445, infra. That her consent does not prevent a conviction for the completed offense of rape, see § 442, infra. 4 Arkansas. Anderson v. State, 77 Ark. 37, 90 S. W. 846. Dakota. Territory v. Keyes, 5 Dak. 244, 38 N. W. 440. Delaware. State v. Davis, 9 Houst. 558, 33 Atl. 439. Illinois. Addison v. People, 193 Ill. 405, 62 N. E. 235. Indiana. Hanes v. State, 155 Ind. 112, 57 N. E. 704. Michigan. People v. Dowell, 136 Mich. 306, 99 N. W. 23; People v. Courier, 79 Mich. 366, 44 N. W. 571. Missouri. State v. Shaw, Mo. —, 220 S. W. 861. South Carolina. State v. Kelly, 114 S. C. 336, 103 S. E. 511. There must be a specific intent to then and there have sexual intercourse with her, Carter v. State, 87 Tex. Cr. 299, 221 S. W. 603; Love v. State, 68 Tex. Cr. 228, 150 S. W. 920; and there can be no conviction where the evidence shows that there was no intention to then and there have intercourse with the child, but that at most the defendant then and there sought to get her consent to permit him to have intercourse with her at some future time and at a different place. Cromeans v. State, 59 Tex. Cr. 611, 129 S. W. 1129. To constitute the offense, there must be sufficient force used in connection with the other circumstances of the case to establish beyond reason. able doubt the purpose of the accused to have carnal intercourse with the child at the very time. Some act must be shown that can be fairly, according to human experience, characterized as having an immediate relation to and preparation or the bringing about of a condition under which intercourse could be accomplished. One is guilty of the offense if he takes hold of a child and handles her in such a manner as to demonstrate a present intent to at once so subject her to his power, she consenting or not, as that he may now accomplish the act of intercourse. Nor need his acts necessarily amount to an indecent handling. But a mere touching of the child with a lascivious purpose is not sufficient, nor is the fact that, after his solicitation to have intercourse has been refused, the defendant places his hand upon her with the intention of detaining her in order that he may make further solicitation. Cromeans V. State, 59 Tex. Cr. 611, 129 S. W. 1129. Only such preparation is necessary as, considering the parties and their surroundings, will convince the jury beyond a reasonable doubt that his intention was to have sexual intercourse. Love v. State, 68 Tex. Cr. 228, 150 S. W. 920. 5 See § 445, infra. 6 Brown v. State, 6 Baxt. (65 Tenn.) The necessary intent need not be shown by direct or positive evidence, but may be inferred by the jury from the surrounding circumstances. But it cannot be implied or inferred as a matter of law from the doing of the act. If it exists when the assault is committed, the mere fact that the defendant afterwards abandons his efforts on account of resistance on the part of the woman, or through fear, or for any other reason, does not affect his guilt.9 § 413. Assault with intent to rob. To constitute an assault with intent to rob there must be an assault,10 the circumstances must have been such that the completed offense would have been robbery,11 and 422; Rhodes v. State, 1 Coldw. (41 Tenn.) 351. 9 California. People v. Johnson, 131 Cal. 511, 63 Pac. 842. Delaware. State v. Davis, Houst. 558, 33 Atl. 439. Georgia. Taylor v. State, 50 Ga. 79. North Carolina. State v. Mehaffey, 132 N. C. 1062, 44 S. E. 107; State v. Williams, 121 N. C. 628, 28 S. E. 405; State v. Elick, 52 N. C. 68. Texas. Everett v. State, 82 Tex. Cr. 407, 199 S. W. 631; Love v. State, 68 Tex. Cr. 228, 150 S. W. 920; Ross v. State, 60 Tex. Cr. 547, 132 S. W. 793. 10 People v. Allen, 32 Cal. App. 110, 162 Pac. 401; State v. Lewis, 173 Iowa 643, 154 N. W. 432, Ann. Cas. 1918 A 403; Walters v. State, 56 Tex. Cr. 10, 118 S. W. 543. To constitute an assault with force and violence with intent to steal from the person there must be an intentional touching of the person amounting to an assault. Com. v. Ordway, 12 Cush. (66 Mass.) 270. 11 Arkansas. Gordon v. State, 125 Ark. 111, 187 S. W. 913, Ann. Cas. 1918 A 419. Illinois. People v. Ryan, 239 Ill. 410, 88 N. E. 170; O'Donnell v. People, 224 Ill. 218, 79 N. E. 639, 8 Ann. Cas. 123. Iowa. State v. Lewis, 173 Iowa 643, 154 N. W. 432, Ann. Cas. 1918 A 403. Ohio. Hanson v. State, 43 Ohio St. 376, 1 N. E. 136. Texas. Moffett v. State, 83 Tex. Cr. 284, 202 S. W. 960; Walters v. State, 56 Tex. Cr. 10, 118 S. W. 543. "Where there is manifested a present purpose to take from the person of another his property, not clandestinely, but openly, and by means of the exercise of such force as may be necessary to overcome any resistance offered, the crime of assault with intent to rob is committed." Gordon v. State, 125 Ark. 111, 187 S. W. 913, Ann. Cas. 1918 A 419. As to what constitutes robbery, see § 935, infra. |