The opinion
WOLFE, Justice
(concurring specially).
I concur on the following grounds: The evidence is such that the jury would not have been justified in finding beyond a reasonable doubt that the defendant had the intent to have intercourse with the prosecutrix by force or fear. The only evidence of that is his pushing her back in the car when she tried to get out. This is more consistent with intent to rape than with intent to gain consent.
The statement that “an assault with intent to commit rape includes every element of the crime of rape except that act of intercourse is not committed” is not exactly accurate and is somewhat puzzling. If one envisages the situation as if rape had been committeed and then subtracts intercourse that may or may not leave assault with
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intent to commit rape because assault with intent to commit rape may be proved at a point short of the amount of force necessary to overcome the resistance. The defendant may have announced to the victim at the beginning of the assault or to another that he intended to have intercourse regardless of consent. That evidence plus the assault would be sufficient to go to the jury but might be less than the rape with just the intercourse subtracted.
I do not feel quite competent to join as an authority on the intensity of the lust which will move man to commit rape and what circumstances will cause him to turn from his intent to commit it. If some one was so impressed with my competence as to ask my opinion, my guess would be that men differ greatly in that regard as in other respects and that there would be a great variance in the potency of a particular condition to divert them after embarking on such a sinister course.
I agree that the judge in this case may have, from the record, seemed overanxious to develop evidence from an embarrassed witness in support of the accusation but I dio not think he so intended it. His mental process was one of trying to develop matters which he thought she may have known about and overlooked. While I think a judge should be judicial and impartial at all times, I am not one who thinks that he should be merely an umpire in a case. He presides over a judicial inquiry. It is within his province to clarify and bring out matters which may be of aid to the jury but he must do it in such a way as not to give the jury the impression that he thinks one side or the other should prevail. Unfortunately, the judge by some of his questions may have given the impression that he thought the defendant was guilty of the crime charged and that he was bent on revealing evidence necessary to support his belief. But having decided that the case must be reversed on the ground of insufficient evidence to go to the jury, it is unnecessary to go further.
McDONOUGH, J. concurs for the reasons stated in the opinion of Mr. Justice WOLFE.