Christensen v. State

Gilbert, C. J., delivered the opinion of the Court. This appeal might well be styled, “Chapter V, in the continuing saga of William Dean Christensen.” 1 We are now asked by Christensen to declare that his plea of double jeopardy should have been upheld and the indictment dismissed, thus penning finis to the saga. The matter reaches us this time by way of a circuitous route which we now recount. Christensen was indicted by the Grand Jury for Montgomery County on charges of kidnapping, assault with intent to rape, attempted rape, assault and battery, and assault.

At his trial before a jury in the Circuit Court, Christensen was found guilty of attempted rape only. An appeal to this Court by Christensen, asserting the misuse at trial of the “missing witness rule,” was unsuccessful. Christensen v. State, 21 Md. App. 428 , 320 A. 2d 276 (1974). The Court of Appeals, however,. granted certiorari, and subsequently, in Christensen v. State, 274 Md. 133 , 333 A. 2d 45 (1975), agreed with Christensen in the “missing witness rule,” reversed our judgment, remanding the matter to us with instruction that we, in turn, reverse the trial court and remand for a new trial.

After our compliance with the mandate of the Court of Appeals, Christensen moved to dismiss the indictment. The basis of Christensen’s motion was that attempted rape involves force and that assault with intent to rape is an attempted rape. Christensen reasoned that having been acquitted of assault with intent to rape he could not be again tried for attempted rape arising from the same incident. ⁶³⁷ The second count of the indictment averred that Christensen: “. . . unlawfully did make an assault . .. upon . . . [the prosecutrix] with intent then and there unlawfully to ravish and carnally know her, forcibly and against her will. .. .” The third count alleged that the accused: “. . . unlawfully did attempt to unlawfully and violently make an assault . . . upon . . . [the prosecutrix], and, forcibly and against her will, unlawfully did attempt to ravish and carnally know her. . ..” The trial judge refused to dismiss the indictment, and as he is permitted to do under Neal v. State, 272 Md. 323 , 322 A. 2d 887 , rev’g 20 Md. App. 20 , 314 A. 2d 710 (1974), Christensen immediately appealed to this Court. Here, Christensen starts with the premise that: “The Maryland Court of Appeals has on several occasions declared that assault with intent to rape is the same as attempt to rape.

Waters v. State, 2 Md. App. 216, 226, 234 A. 2d 147, 153 (1967): “Aggravated assaults are nothing more then [sic] attempts to commit murder, rape, or robbery, a view apparently followed in this State.” Hazel v. State, 221 Md. 464, 469 , 157 A. 2d 952 [2] (1960): “Rape and attempted rape involve an act of force without consent and against the will of the victim.” (Emphasis supplied.) Our perusal of Waters and Hazel does not lead us to conclude, as does appellant, that assault with intent to rape and attempted rape are one and the same. In Waters , we did not flatly state, as the appellant’s quotation from that case would lead one to believe, that “aggravated assaults are nothing more then [sic] attempts to commit murder, rape, or ⁶³⁸ robbery, a view apparently followed in this State.” What we actually said in dictum was, “[i]t has been said that aggravated assaults are nothing more than attempts to commit murder, rape, or robbery (Clark and Marshall, Crimes, Sixth Ed. § 4.07, p. 218), a view apparently followed in this State. See Farrow v. State, 233 Md. 526, 533 [ 197 A. 2d 434, 438 (1964)].” 2 Md. App. at 226 , 234 A. 2d at 153 . Farrow does not appear to underpin Waters .

All that the Court said in Farrow with respect to Farrow’s challenge of his conviction of assault with intent to commit rape and buggery was: “This contention is based upon the direct testimony by the prosecuting witness that these substantive crimes were, in fact, committed by the defendant. However, this contention completely ignores the fact that there was substantial testimony offered by the doctor to the effect that there was no emission and perhaps no penetration. The jury might well have concluded that the state had not met the burden of proof required to establish the substantive crimes charged. There was evidence to establish the attempts.” 233 Md. at 533 , 197 A. 2d at 438 .

Christensen’s quotation from Hazel, supra, is more fiction than fact. The italicized portion of appellant’s Hazel quote simply is not in the text of that case, although the unitalicized part does appear at 221 Md. 469 , 157 A. 2d 924 . Contrary to the appellant’s point of view, the Maryland law is clear that, “[t]here is a difference in the essential elements of the two crimes [assault with intent to rape and attempted rape]...Avery v. State, 15 Md. App. 520, 547 , 292 A. 2d 728, 746 (1972). In Middleton v. State, 6 Md. App. 380, 385-86 , 251 A. 2d 224, 227 (1969), Chief Judge Murphy, for this Court, wrote: “The essential ingredients of the crime of assault with intent to rape are (a) an assault, (b) an intention to have carnal knowledge of a female, and ⁶³⁹ (c) a purpose to carry into effect this intention with force and against the consent of the female.” Earlier, the Court of Appeals, in Wiley v. State, 237 Md. 560, 563-64 , 207 A. 2d 478, 480 (1965), speaking through Judge Hammond (later Chief Judge) said: “An attempt to commit a crime consists of an intent to commit it, the performance of some act towards its commission, and failure to consummate its commission.” 3 1 Wharton’s Criminal Law and Procedure (R.A. Anderson ed. 1957), provides: § 322.

Attempt to rape. “An attempt to rape is an offense distinct from rape or an assault with intent to rape. The intent to rape must exist at the time that the defendant commits the overt act. To establish an attempt to commit rape, there must be an overt act. As in the case of all attempts, the defendant must fail to perform the criminal act intended. 4 § 323.

Assault with intent to rape. To constitute the offense of assault with intent to rape the defendant must be guilty of (1) assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry this intent into effect by means of force and against the will of the female. ⁶⁴⁰ An assault with intent to rape must be distinguished from an attempt to rape. The latter is a common-law offense while the former is a statutory offense.” (Footnotes omitted.) We think it clear from an examination of the elements of assault with intent to rape and attempted rape that, while the purpose to engage in illicit coitus is attendant in each offense, the crimes are different. If an attempt to commit a rape proceeds to a degree whereby it is tantamount to an assault upon the victim, the offense becomes the felony of assault with intent to rape, but if the attempt to rape falls short of an assault, the offense remains a common law misdemeanor.

Burton v. State, 8 Ala. App. 295 , 62 So. 394 (1913). See also Taff v. State, 69 Tex. Crim. 528 , 155 S. W. 214 (1913).

In Maryland, assault with intent to rape and attempted rape are retained as separate and distinct crimes. The authorities, generally, are in accord with our view. 5 22 R.C.L. 1235 states: “An attempt to rape is an offense distinct from rape or an assault with intent to rape, and comprehends elements different from those which combine to constitute either of those offenses; an attempt to commit rape may be