State v. Waid , 92 Utah 297 ( 1937 )

I concur in the results. I have doubt as to whether the offense of simple assault is included in the offense of taking indecent liberties. Section 105-34-6, R.S. 1933, reads:

"The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense."

The test of whether one crime is necessarily included in another crime is not whether the information or even the evidence tends to show another crime was committed, but whether the greater crime by definition necessarily includes a lesser. This is tested by taking all the elements of the greater crime and as one or another is abstracted, to see if it necessarily leaves the elements remaining of a lesser crime. Taking indecent liberties with a young girl does not require the element of lack of consent. All that is required is the indecent touching of a person below a certain age. But plain assault requires absence of consent. Therefore, it may be necessary to introduce an element to prove the plain assault which was not required to be proved in the offense of taking indecent liberties with the child. I use assault in the way it is used in common parlance and not in its technical sense as used in section 103-7-1, R.S. 1933. A young person may consent to be touched and thus furnish a defense to plain assault, but even though she consents to be indecently touched, it will not furnish a defense. Consequently, the two offenses may not have common elements. The cases have unfortunately confused the matter. After stating the principle, some of them inject the statement that there was evidence which pointed to the lesser crime. See People v. Spady, 64 Cal. App. 567,222 P. 191. Of course, even if a lesser offense is included in a greater, if there is no evidence to support a verdict of the lesser offense, it should be ruled out. If one person sent another a box of poisoned candy in order to cause his death, an instruction that the jury might convict the sender of voluntary manslaughter would be out of place. Other cases apparently holding that the elements constituting the lesser offense must all necessarily be included among the elements of the greater are: State v. Woolman, 84 Utah 23, 33 P.2d 640, 645, 93 A.L.R. 723; Cochran v. State, 4 Okla. Crim. 379,111 P. 974; In re McClane, 129 Kan. 739, 284 P. 365 (where again the matter was confused by mentioning that the evidence showed the claimed included crime could not have been committed); State v.Taylor, 33 N.M. 35, 261 P. 808; People v. Gomez, 118 Cal. 326,50 P. 427 (where again the court confused the point by reference to the evidence) In State v. Woolman, supra, it was held:

"The only way this matter may be determined is by discovering all of the elements required by the respective sections, comparing them and by a process of inclusion and exclusion, determine those common and those not common, and, if the greater offense includes all the legal and factual elements, it may safely be said that the greater includes the lesser; if, however, the lesser offense requires the inclusion of some necessary element or elements in order to cover the completed offense, not so included in the greater offense, then it may be safely said that the lesser is not necessarily included in the greater, or, stated otherwise."

It is doubtful in my mind whether the crime of plain assault can be included under this test in a charge of taking indecent liberties.

I think the inadvertent inclusion of the word "preponderance" in the instruction complained of was not prejudicial in view of the repeated emphasis on the true test contained in the other instructions as to not finding defendant guilty if they had a reasonable doubt about it. I agree, however, that permitting the jury to place the alleged acts of the defendant other than on the 20th of July and thus negativing the effect of the alibi, when there was no evidence to support any conclusion that it might have taken place on another day, was error. However, if there had been evidence that it could have been on another day or even at another place, if it was the act charged in the information, the fact that it would have thus negated defendant's alibi would not have prevented this instruction. Time and place are mainly for the purpose of identifying the act. If the evidence shows a different time or place, but it is apparent that it is the same act and the defendant was not made to defend a different act and was sufficiently apprised by the complaint of the act on which the charge is based, he cannot complain because such evidence which varies the time and place from the information destroys his alibi. Of course, if the place shown by the evidence is in a different county, the prosecution fails. He still has every opportunity to put in defenses to the act charged, even though the evidence shows it to have happened at a different time and place. He may be granted a continuance on the plea of surprise. Even the requirement under the new criminal procedure that he must give the prosecutor notice of a defense of alibi does not, to my mind, tie the State strictly to the time and place mentioned in the information. Such notice is for the benefit of the State and not the defendant. As stated, if the evidence produces such a variance as to time and place as to put him to a disadvantage in his defense, he should be given time to prepare for the defense which such variances require.

LARSON, J., being disqualified, did not participate herein.