State v. Petty

248 P.2d 218, 73 Idaho 136, 1952 Ida. LEXIS 221

• Court: Idaho Supreme Court
• Decided: July 23, 1952
• Docket: 7778, 7780
• Status: Published

Opinions

TAYLOR, Justice.

Pursuant to stipulation these cases involving identical issues were consolidated on appeal.

The defendants, respondents here, were separately charged by information with the crime of lewd and lascivious acts under the provisions of § 18-6607 I.C. The. acts charged in each case are alleged to have been committed with and upon the body and person of a female child under the age of sixteen years. Demurrers to the information were filed raising the same issues in both cases. The demurrers were sustained by the trial court on the ground that the above statute is unconstitutional. As to constitutionality, the act is attacked here on the same grounds urged in the case of State v. Evans, Idaho, 245 P.2d 788. The decision in that case disposes of all issues in these cases except that raised by sub-paragraph (a) of the demurrers, which urges that more than one offense is charged. In State v. Evans, supra, the lewd and lascivious acts were alleged to have been committed against the person of a female child under the age of sixteen, but no intent to rape was there alleged. Each of the informations now before us sets forth certain lewd and lascivious acts with a female child under sixteen years of age, alleges that such acts were committed “with the intent of arousing, appealing to, and gratifying the lust and passion and sexual 'desires of said defendant and of said minor” and continues “with the intent and purpose of having sexual intercourse with the said” minor child. Thus these informations charge the specific intent required by § 18— 6607 I.C., and the specific intent required as an element of assault with intent to rape. §§ 18-901 I.C., 18-907 I.C., and 18-6101 I.C. The other elements of both crimes being sufficiently alleged, the informations charge both lewd and lascivious conduct and assault with intent to commit rape.

In State v. Evans, supra, we held that the charge of lewd and lascivious conduct did not necessarily include assault with intent to rape. That is, a person might commit lewd and lascivious acts upon and with the body of a female child under sixteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, without the intent to have sexual intercourse. But the reverse is not true, because any acts leading to rape or assault with intent to rape, would be lewd and lascivious and would evince the intent described in § 18-6607, I.C. “ * * * where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included • offense.” People v. Greer, 30 Cal.2d 589, 184 P.2d 512 at 516; People v. Chapman, 81 Cal.App.2d 857, 185 P.2d 424.

The statutory rule against charging more than one offense (RR 19-1413 and 19-1703 I.C.) does not apply to included offenses. State v. Garney, 45 Idaho 768, 265 P. 668; State v. Alvord, 47 Idaho 162, 272 P. 1010; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Hix, 58 Idaho 730, 78 P.2d 1003; State v. Garde, 69 Idaho 209, 205 P.2d 504. Where the state elects to charge and prosecute on an included offense rather than on the completed or higher offense the information is not subject to challenge for duplicity even though it may appear therefrom that the completed or higher offense had been committed. State v. Wall, 73 Idaho 142, 248 P.2d 222. The matter of determining which of two or more applicable criminal statutes will be invoked is for the State to decide. It is not a matter of concern to the accused so long as his constitutional and statutory rights are not violated. State v. Gutke, 25 Idaho 737, 139 P. 346. In the case of included offenses he is protected against double jeopardy since a conviction or acquittal of one is a conviction or acquittal of the other. §§ 19-107, R 19-1717, R 19-H719, 18-301 I.C.; State v. Gutke, supra; State v. Randolph, 61 Idaho 456, 102 P.2d 913; People v. Greer, 30 Cal.2d 589, 184 P.2d 512.

It is a right of the accused to be informed of the exact charge against him. He is entitled to know for what specific offense he is to be tried. Art. 1, § 13, Idaho Constitution; RR 19-1409, 19-1411, 19-1418 and 19-1514 I.C. Here it is apparent from the complaints' filed with the magistrate, and the informations, that, the state seeks to invoke § 18-6607 I.C,. and to prosecute the defendants for lewd and lascivious conduct. And this is the particular offense specifically named in the orders of the committing magistrate. The allegation in the informations of an intent to have sexual intercourse is, therefore, surplusage, subject to be striken on motion of the defendants. In any event, to be .treated as such.

The demurrers should have been overruled.

Judgments reversed.

GIVENS, C. J., and PORTER, J., concur.