United States v. Joe Hutchinson

478 F.2d 997, 156 U.S. App. D.C. 87, 1973 U.S. App. LEXIS 9991

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 11, 1973
• Docket: 72-2091
• Status: Published

Opinion

PER CURIAM:

Appellant was convicted of two counts of assault with intent to commit rape. 22 D.C.Code § 501 (Supp. V 1972). Chapter 28, Title 22, District of Columbia Code reads:

CHAPTER 28. — RAPE

§ 22-2801. DEFINITION AND PENALTY.

Whoever has carnal knowledge of a female forcibly and against her will or whoever carnally knows and abuses a female child under sixteen years of age, shall be imprisoned for any term of years or for life.

The victims in the two counts with which appellant was charged were females over 16 years of age. Instead of charging under the first part of 22 D.C. Code § 2801 (Supp. V 1972): “Whoever .has carnal knowledge of a female forcibly and against her will,” the counts in the indictment against appellant charged under the second part relating to carnally knowing and abusing a female child. 1 Thus the counts of the indictment are brought under the wrong part of the statute. Since there is no crime of assault with intent to carnally know and abuse a female 16 years of age or older, appellant’s conviction must be

Reversed.

1 . The two counts of the indictment read: FIRST COUNT:

On or about February 12, 1972, within the District of Columbia, JOE HUTCHINSON assaulted [the first victim], a female person, with intent to carnally know and abuse the said [first victim].

SECOND COUNT:

On or about February 12, 1972, within the District of Columbia, JOE HUTCHINSON assaulted [the second victim], a female person, with intent to carnally know and abuse the said [second victim].