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STATE EX REL. RADKE v. TAHASH

No. 41099.

166 N.W.2d 710 (1969)

STATE of Minnesota ex rel. Dale E. RADKE, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Prison, Respondent.

Supreme Court of Minnesota.

March 28, 1969.

Attorney(s) appearing for the Case

C. Paul Jones, Public Defender, Robert E. Oliphant, Asst. Public Defender, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., David J. Byron, J. Dennis O'Brien, Sp. Asst. Attys. Gen., St. Paul, for respondent.

Heard before KNUTSON, C. J., and OTIS, ROGOSHESKE, SHERAN, and PETERSON, JJ.

OPINION

PETERSON, Justice.

The critical question to be answered in this case is whether the crime of indecent assault upon a child is a lesser and included offense of the crime of sodomy; that is, whether the crime of indecent assault is necessarily proved in proving the crime of sodomy. The answer depends upon whether the crime of indecent assault has within it an essential element of forceful assault.

The issue is presented in this simple situation...

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