State v. Mortensen , 95 Utah 541 ( 1938 )

I dissent. We all agree that an overt act must be shown. I dissent from the conclusion that an overt act was not shown. In the following summary the names Anna and Anna Mae are substituted for the true names of the two girls most concerned. Anna testified:

"I am eleven years old. I had not seen Mr. Mortensen until that Sunday at the Holland Inn. He was playing the machine. Anna Mae was with me. He put nickels in the machine and let us shoot it by turns. He gave us some money to buy candy bars. We went home to dinner and returned, and he still let us play the machine. He asked us if we wanted to win some money. We said `Yea,' and he told us to go down to the creek bridge where he would meet us in about fifteen minutes. We hurried down there and Mr. Mortensen came in a few minutes. He then told us to go up the creek a little further and he would meet us. We hurried up. * * * and Gilbert was sitting by a tree waiting for us, near the creek. He said go up the creek further and I will meet you there. I said, `all the further we will go is to the flume.' He said, `All right, there are some kids here.' We hurried up to the flume and crossed the creek to a little hill, and there we saw him climbing the fence. When he came out of the willows he motioned for us to come where he was. Anna Mae started to run and said, `I am going home.' I told her to come back. Then she asked him if he was going to play dirty, and he said, `No, I am too big for that.' Then he said, `Do you want two nickels?' We said, `Yes,' and he handed out two nickels and went down by the fence. I went across the fence to get the money. He gave me my nickel but not Anna Mae's nickel. So she went over the fence and got her nickel and came back, and started to go; I told her to wait. He said, `You ditch Anna Mae and come back here in ten minutes, and we will have a little fun, and he would hug and kiss me a little.'

"I went across the fence where Anna Mae was waiting for me. I was going home. I gave Lorraine the nickels, and she told me to go back. I went down across the fence on the opposite side of the creek from the other children. He came down by the fence and sat down by the bushes, I stood by the fence. He said, `Don't you want to earn some money?' I said, `Yes, but I don't know how; what are you going to do?' He said, `I am just going to have a little fun.' He said, `You have a sister, haven't you.' He said some funny name I couldn't understand him, and said, `Isn't it true?' I said, `No.' He said, `Well, she likes to have fun.' He said, `You sit down.' I wouldn't do it; he started to slide over toward me, and I moved back. I said, `What are you going to do?' He said, `Just have a little fun, and if I hurt you I will give you a quarter and you can go home.'

"I heard something and said, `Someone is there.' He said, `It is only a stick hitting the flume; don't you want to have some fun.' I said, `I don't know what you are going to do.' He said, `Just have a little fun.' Then I saw Lorraine and the other children running down the railroad tracks, and I said, `There is my daddy now.' He said, `Where?' I said, `Right up there.' Daddy hollered at me and I went up toward the flume crying. He said, `Why did you coax these girls down here?' Mr. Mortensen said, `I didn't coax these girls down here.' I said, `You did, and hollered at Anna Mae, `Didn't he coax us down here?' And Anna Mae said, `Yes.' I went down to the car (automobile) and I don't know what happened after that."

Anna Mae corroborated the foregoing and said that it was after she received her nickel from Mortensen and then "ran across there" that she first saw Lorraine, Jackie Steele and Sherrill Crane since they left the Holland Inn. And that she didn't see Anna after that until the latter's father came.

Lorraine, Jackie and Sherrill each testified, in substantial agreement, that they were in the Holland Inn on the Sunday in question when Gilbert Mortensen was playing the nickel in slot machine with the two girls Anna and Anna Mae; that they heard no conversation between Mortensen and the girls but saw the girls go out, Mortensen following them. Lorraine and the two boys also soon left the Inn, keeping Mortensen and the two Annas within view. They saw the two girls go up the creek from the bridge, and Mortensen go up the road, south. Next they saw Mortensen about a block from the bridge on the creek bed. From there Mortensen and the girls went up the creek to the flume. The other party followed. They heard them talking but could not tell what was said. Lorraine, Jackie and Sherrill were hiding there about ten minutes. Then they went across the creek on the railroad track. Jack ran for the town marshal. He came back with Anna's father. After that they all went home.

Anna's father testified that he went to the flume in his car on learning that his daughter was there with Mortensen. Found them under the culvert in some willows. He called his daughter; called Mortensen some names. Mortensen said that he had been sitting there all day. The father called him a liar, took the kids and went home.

I dissent from the majority view that an exposure by Mortensen of his male organ to the girl and a declaration of his purpose to use it is the only overt act such a case admits of, if that be the position of the majority opinion. Section 103-1-29, R.S. Utah 1933, defines a criminal attempt as "any act done with intent to commit a crime * * * but failing to effect its commission." A girl under thirteen years of age is incapable of legal consent. Force is not an essential element. Any act from which the jury can discern an intention to commit the act of sexual intercourse with a girl under that age unless prevented, is an overt act. Before rape can be accomplished in such case, the attempter must gain possession of the girl's person. She must surrender or submit her body to the act of rape, or else the attempter must take possession by force. In either case, if the designed consummation follows, it is rape. To induce submission to such design, the attempter may employ either force, persuasion, rewards, enticements, or even acts of fraud. Yet violent rape and persuasive rape have equal criminality in such case. Hence, the overt act may be that suitable to the method and means employed to gain the consent, the surrender of the girl's person to the act intended. Any act designed and intended to bring about such surrender and submission to the unlawful act, though willingly, is just as much an attempt as is an act of force, or threatened force inducing fear and submission. Before the attempter can have his way with the girl's body, he must first overcome and conquer her mind, her will to withhold her body from use in the illegal act. Any act of persuasion, reward, or enticement operating upon the girl's mind to induce submission of her body to the intended use is as much an attempt at rape as is force directly acting upon her body. Reason instructs us also that where a desired end may be accomplished by soft words, persuasion, and a small outlay in money, it will be preferred to an act of force which may defeat its own object by provoking resistance or flight. One about to burglarize a house does not give advance notice to its occupants. One about to debauch and violate a young girl's person does not at once brazenly expose his nakedness and declare his purpose to penetrate her person with it. Instead, he sugars and softens his words, offers inducements, and quiets the girl's natural apprehensions of pain or impropriety. He lures her to a place of seclusion with specious pretenses. Then he seeks by cunning means to effect contact with her person. His professed desire to hug, kiss and embrace are but a light disguise for declared lust.

Reason tells us that if, in such case, the female is prone to resist or refuse submission of her body to such a purpose, she will do so before her person is touched. The art employed is to quiet apprehension and gently lead her to submission. When she is firmly within his embraces, or lies prostrate before him, she is already entangled in his web and under the dominion of his will. His overt acts have already been employed and his conquest has occurred, before he makes indecent display of his parts. The overt acts precede the actual assault. He has already overtly contrived and accomplished privacy with the girl in a place of seclusion. He has overtly practiced persuasion, offered a reward or inducement, and solicited contact with her person. In this case he had, in addition, induced one of the girls to ditch her companion, that is, to retire her from their immediate presence. He offered her a little money to permit him to embrace her and have fun; more money if he should hurt her in the act. In the nick of time she saw her father coming, and ran crying from his presence.

There is a well defined difference between the offenses defined as an attempt to commit rape and an assault with intent to commit rape. A different overt act is requisite in each, as the offenses themselves are different. In State v. Hyams,64 Utah 285, 230 P. 349, we held that there is such difference between the two offenses that a verdict of guilty of attempted rape will not sustain a judgment of conviction of assault with intent to commit rape. See, also, State v. Smith, 90 Utah 482,62 P.2d 1110. This is a clear recognition of the principle that an attempt, or the overt act which is the initial stage thereof, does not require a physical act in the way of an assault or advance upon the person of the intended victim. This view is also in harmony with decisions elsewhere. To require proof of indecent liberties with the female's person (or what is like it, indecent exposure of the attempter's male organ to the female with an indication of purpose to use it) is to require proof of an assault to commit rape, rather than a mere attempt short of an assault. 5 C.J. 721, Sec. 181, note 36 and cases cited. An attempt is any act done with the intent, and contributing to the success, of the crime attempted. It need not be the last proximate act. 16 C.J. 114. It need not involve an actual assault. Id. p. 115, n. 33-34. By the weight of authority it is indictable at common law to solicit another to commit a felony, although the solicitation prove ineffectual and the crime is not committed. Id. p. 117 n. 63, and many cases. So held with respect to solicitations to commit sodomy, adultery, and other crimes mentioned. Id. p. 118, n. 64-69, and cases. Solicitation accompanied by another overt act is more than mere solicitation. Id., p. 118-119, Sec. 98, and cases. At bar we have not merely solicitation but contrived seclusion and rewards offered, increasing in case of pain, and a sliding approach to the girl solicited.

In charging attempted rape of a girl under age of consent it is only necessary to allege and prove acts leading to and which would have resulted in rape had the purpose been consummated. 55 C.J. 1049, Sec. 70. The overt act may consist of threats producing fear, or acts of fraud inducing consent. Id. p. 1049, Secs. 71-72, and p. 1058 Sec. 83. Yet threats inducing fear only influence the mind; and so does an offer of reward tend to influence the mind which stands guardian over the body.

In State v. Evans, 27 Utah 12, 73 P. 1047, we say that "an attempt in any form" [page 1048] is within the statute prohibiting criminal attempts. Our statute, R.S.U. 1933, 103-1-29, says substantially the same thing. In State v.Prince, 75 Utah 205, 284 P. 108, we held that mere verbal threats tending to produce fear, and fear to induce submission to a criminal design to extort money, is an overt act in such an attempt. Here we have not threats but promises of money to induce submission to a criminal design and request.

In Payne v. Commonwealth, 110 S.W. 311, 33 Ky. Law Rep. 229, it was held that an overt act in attempted rape need not amount to a technical trespass. And in Burton v. State,8 Ala. App. 295, 62 So. 394; Taff v. State, 69 Tex.Crim. R.,155 S.W. 214; Ross v. State, 16 Wyo. 285, 93 P. 299, 94 P. 217, it was held that the overt act in attempted rape need not proceed so far as an assault, that is, an unlawful or threatening advance. In State v. George, 79 Wash. 262, 140 P. 337, it was held that attempted sodomy does not imply or require a physical act, but that it may consist only of solicitation, persuasion or threats, requires no assault, and, according to Mr. Bishop, is indictable even though the person approached declines the persuasion.

In State v. Bowers, 35 S.C. 262, 14 S.E. 488, 15 L.R.A. 199, 28 Am. St. Rep. 847, it was held that the mere solicitation of forgery is an indictable attempt. In People v. Mills,41 Misc. 195, 83 N.Y.S. 947, that solicitation of theft of public records supports a conviction of the attempted theft. In Com. v. Jacobs, 9 Allen 274, 91 Mass. 274, that solicitation to enlist for military service abroad supports conviction. And in the following cases that solicitation is an overt act in attempted arson: State v. Hayes, 78 Mo. 307; State v.Dumas, 118 Minn. 77, 136 N.W. 311, 41 L.R.A., N.S., 439; and Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55. InGriffin v. State, 26 Ga. 493, the overt act of attempted house-breaking was the taking of the impression of a key to a lock with which to enter a house for theft and the employing of another to enter and steal.

The jury in this case was warranted in concluding from the evidence, as they did, that the defendant was guilty of an attempt to rape and had committed overt acts leading thereto, adapted in their nature to his purpose and promoting its accomplishment, while he was yet only weaving his web, trying to persuade the girl to surrender her person to his embraces, offering her money, and more money if he should hurt her. His conduct carried sexual implications and evinced a lustful design. So the girls understood him, and so the two boys and girl who awaited developments in hiding — so the boy who ran for an officer and returned with the girl's father. So the jury who convicted him of attempting what his acts manifestly implied.

In my opinion the judgment of conviction should be affirmed.