Appellant was charged in a two count indictment with (1) assault with intent to commit carnal knowledge
Mary Brown, the prosecutrix, was eleven years old at the time of the alleged assault. She was walking home with her ten-year old brother, Joseph, and her five-year old cousin, Edward, when appellant stopped the three and took Joseph into his house. Mary and Edward followed. Appellant gave Joseph some money and sent him to the store for some sodas. As Mary was leaving the house with the two boys, appellant grabbed her and slammed the door. After trying to kiss her, he put a white shirt on the couch and threw her upon it. Some wrestling and screaming ensued, during which, in Mary's words, appellant threatened to "cut my neck off" if she continued to scream. Mary testified that appellant then "opened his zipper and
Shortly afterwards, Miss Nettie Farrow went to Mary's house to find out why she was crying. Mary told her that "some man had pulled her in the house." During this time Mary "looked like she was in hysterics." Miss Farrow and Mary then left to find a policeman. Officer Geffen testified that he was summoned by Mary, who was waving her arms and yelling for the police. She was crying and appeared "emotionally upset, sort of hysterical." Over the objection of defense counsel, Officer Geffen was permitted to testify that Mary told him "that a man had taken her in his room and laid her on a couch, and dropped his pants and tried to put his private in her."
Our reading of the transcript and review of the controlling case law compels us to conclude that there was insufficient corroboration to sustain a conviction of assault with intent to commit carnal knowledge.
A. It is the law of this jurisdiction that no person may be convicted of a "sex offense" on the uncorroborated testimony of the alleged victim.
Since no question is here raised concerning identification, our only task is to evaluate the sufficiency of corroboration as to the corpus delicti. It is clear that the corpus delicti in a given case consists of all the material elements of the crime charged.
B. Our starting point is Hammond v. United States, 75 U.S.App.D.C. 397, 127 F.2d 752 (1942), wherein we set forth the elements of an assault with intent to commit rape as follows: "(1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female." 75 U.S.App.D.C. at 398, 127 F.2d at 753. When the intended victim is a child under the age of 16, the third element is dispensed with,
Putting aside for a moment the matter of corroboration, we have no doubt that the Government's case established
C. Although parts of Mary Brown's testimony were, of course, corroborated, the record is barren of corroboration as to the material facts indicating an intent to commit carnal knowledge. We have the testimony of Joseph that he (1) heard his sister screaming and (2) saw appellant on top of her on the couch. We have the testimony of Miss Farrow and Officer Geffen, which tend to show (1) Mary's prompt reports to a friend and the police and (2) her distraught and emotional condition. Finally, the record discloses no apparent motive for Mary to fabricate her story.
There is no corroboration as to most of what purportedly took place in appellant's apartment, including most significantly appellant's attempts to kiss Mary, his exposure of himself, and his attempts to remove her clothing.
We come now to the question of disposition. Guided by our decision in Austin v. United States, 127 U.S.App. D. C. 180, 382 F.2d 129 (1967), we have concluded that the cause should be remanded with instructions to enter a judgment of guilty of taking indecent liberties with a minor child. We discuss below the problems such disposition may seem to raise.
A. In Austin, we construed 28 U.S.C. § 2106 (1964)
The elements of the offense
Our decisions leave no doubt that the crime of taking indecent liberties is a lesser included offense of assault with intent to commit carnal knowledge.
Finally, aside from the former jeopardy issue disposed of below, we perceive no possible prejudice to appellant as a result of our disposition. As in Austin, appellant here had full notice of his potential liability for the lesser crime. There is no indication that defense presentation would have been altered had the assault with intent charge been dismissed at the close of the Government's case. For added precaution, however, our remand
B. The trial court correctly instructed the jury that, in the event they found the defendant guilty of assault with intent to commit carnal knowledge, they were not to consider the taking indecent liberties count.
We alluded to a similar problem in the recent case of Fuller v. United States, 132 U.S.App.D.C. ___, 407 F.2d 1199 (en banc, 1968), cert. denied, 393 U.S. 1120 (1969). In holding that a jury may be permitted, in certain circumstances, to render separate verdicts as to separate homicide offenses, we reasoned that a rule requiring the jury to register an acquittal of the one offense (e. g., premeditated murder) if they return a conviction on the other (e.g., felony-murder) might ultimately spawn a range of double jeopardy contentions.
This disposition is plainly in the interest of justice; the verdict of acquittal did not reflect a finding of fact in defendant's favor, but an (inaccurate) legal supposition that the conviction of defendant for his carnal knowledge intent necessarily carried as a corollary a verdict negativing indecent liberties intent. In appealing to this court for correction of errors of law, including the error of the trial judge in presenting carnal knowledge to the jury, defendant submits himself to a rectification that puts him in the position he was entitled to occupy at trial. Appellant stands in the same legal position as one who had been found guilty only of carnal knowledge.
The cause will be remanded to the District Court with directions to enter a judgment of guilty of taking indecent liberties with a minor child and to sentence accordingly, unless the District Court determines to grant a new trial in the interest of justice.
Circuit Judge Danaher became Senior Circuit Judge on January 23, 1969.
In Sanselo v. United States, 44 App.D.C. 508, 511 (1916), we held that assault with intent to commit carnal knowledge of a minor child was punishable under the predecessor of § 22-501.
Doubts cast upon the vitality of Ercoli and Forte by the Supreme Court's decisions in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308 (1954) and Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), do not touch upon the problem here considered.