State v. Therkelson

¶1The chief point made on the information is that the exception in our statute, “or the crime of assault with the intent to commit rape, ’ ’ ought to have been, but was not, negatived in the information. I think there is a distinction between “committing or intending, or attempting to commit,” rape and “an assault with the intent to commit rape” (33 Cyc. 1430), and that to properly charge “an indecent assault” under the statute, both should be negatived. But I am of the opinion that both are sufficiently negatived by the information. It is affirmatively charged that the defendant “willfully, unlawfully, and feloniously made an assault” on the girl and took “indecent liberties” with her “without committing, or intending or attempting to commit rape.” The gist of “an assault with the intent to commit rape” is an assault with the intent to ravish the female or to have sexual intercourse with her. The alleged assault clearly negatives that intent. The information states that the assault was made “without intending or attempting to commit rape,” but merely to “take indecent liberties” with the girl. Hence the specific “assault” described in the information clearly negatives “an assault” to commit rape.