concluding that the district court did not abuse its discretion by permitting the prosecutor to ask leading questions because “[t]he victim’s hesitancy to testify concerning this matter was understandable”
How later courts described this case
- concluding that the district court did not abuse its discretion by permitting the prosecutor to ask leading questions because “[t]he victim’s hesitancy to testify concerning this matter was understandable”
- holding that a nine-year old’s statements elicited by police officer between forty-five minutes and one hour and fifteen minutes after an assault fell within the excited utterance exception
- applying exception where evidence “suggested ... that [nine-year-old declarant] had struggled with the defendant, that he had threatened her with serious harm and that he had unsnapped and pulled down her jeans. The stress and fear that such an occurrence would impose upon a young girl cannot be discounted.”
- explaining that assault with intent to commit rape requires the specific intent to commit rape
Written by the judges who cited it.
The opinion
BRIGHT, Circuit Judge,
dissenting:
Although I would concur in all other parts of the majority opinion, I cannot agree with the court’s resolution of the lesser included offense issue. Because I believe the trial court committed prejudicial error in refusing to instruct the jury as to the offense of assault by striking, beating, or wounding, I would reverse the conviction and remand for a new trial.
The majority recognizes that assault by striking, beating, or wounding, 18 U.S.C. § 113 (d) (1976), is the equivalent of common law battery. See United States v. Knife, 592 F.2d 472, 482 (8th Cir. 1979); United States v. Big Crow, 523 F.2d 955, 958 (8th Cir. 1975), cert. denied, 424 U.S. 920 , 96 S.Ct. 1126 , 47 L.Ed.2d 337 (1976); United States v. Stewart, 568 F.2d 501, 504-05 (6th Cir. 1978). This simple battery is the proper lesser included offense whenever the Government proves a charge of assault with a specific intent by evidence of actual physical contact. See United States v. Knife, supra, 592 F.2d at 482 .
As used in 18 U.S.C. § 113 , the term assault has a broader meaning than at common law. “From the language of § 113, it is manifest that Congress employed the word ‘assault’ to include battery.” United States v. Eades, 615 F.2d 617 , 622 n.5 (4th Cir. 1980); see United States v. Chaussee, 536 F.2d 637, 644 (7th Cir. 1976); accord United States v. Anderson, 425 F.2d 330, 333 (7th Cir. 1970). Under 18 U.S.C. § 113 (a) where there is uncontested evidence of a battery, an assault with intent to commit rape is in effect a battery with the specific intent to commit rape. In such a case, the crime of simple battery is a necessarily included lesser offense.
Because assault by beating is a lesser included offense of assault with intent to commit rape, defendant would be entitled to an instruction if
the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense[.] [United States v. Brischetto, 538 F.2d 208, 209 (8th Cir. 1976).]
Accord United States v. Klugman, 506 F.2d 1378, 1380 (8th Cir. 1974); United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). See also Keeble v. United States, 412 U.S. 205, 208 , 93 S.Ct. 1993, 1995 , 36 L.Ed.2d 844 (1973).
In the instant case the element of “intent to commit rape” differentiates the two offenses. Iron Shell testified that he was drunk and could not remember the assault. The proof of striking and beating of the victim remained undisputed.
If the jury could conclude that the Government did not prove an intent to commit rape, the choice of the lesser included offense under the facts was that of assault by striking, beating, or wounding. The simple assault instruction given by the district court did not fit the undenied facts and therefore did not afford the jury a proper choice of a lesser included offense. The failure to instruct on this lesser included offense constituted error. Under the record in this case, I believe that error prejudiced the defendant.