The defendant was convicted of the crime of assault with intent to commit rape, and appeals from the judgment and an order denying his motion for a new trial.
Appellant urges a reversal upon the ground that the verdict is not supported by the evidence. The only testimony disclosed by the record is that of the prosecuting witness and her husband, and the sole question presented for consideration is, whether or not this uncontradicted evidence is sufficient to establish a prima facie case of the crime charged against the defendant. No good purpose can be subserved by any extended reference to the evidence. The prosecuting witness lived with her husband in a tent house consisting of two rooms. The defendant entered the same in the night-time while both husband and wife were asleep. We may concede that he entered the room, where the prosecuting witness was sleeping with her husband, for the purpose of feloniously obtaining money. He was unable to obtain it, and it appears that he then formed the design to commit the crime with which he is charged. The uncontradicted evidence shows that, in response to the defendant's demand for money, the husband informed him that they had only ten or fifteen cents in the house, which *Page 751 was in a purse under his wife's pillow; that when she attempted to raise up to get it he placed his hand upon her throat, pushed her down upon the pillow, and said he didn't want it; he had a revolver which he thrust in the faces of both husband and wife, accompanying the exhibition with threats to kill them if they did not lie down and keep in place a blanket which he had thrown over their faces; that while thus intimidating them he clearly stated in the vilest language his purpose to have sexual intercourse with the wife, threw the bed covering from her body, and, notwithstanding her resistance, disarranged her night dress and repeatedly placed his hand upon her person; that the husband made his escape by jumping through a window, whereupon defendant abandoned his design and fled from the house.
We cannot agree with counsel's contention that the evidence is wanting in proof that force and violence accompanied the attack. It would be difficult to conceive of an assault attended by force and violence of a greater degree than is disclosed by the evidence under consideration.
The assault being clearly proven, the intent with which it was committed becomes the vital element in ascertaining the nature of the offense, and the determination of this from all the circumstances and acts of the defendant is the peculiar province of the jury. "In such a case the intent is to be determined by and from the acts committed, and it is not for the judge, but for the jury, to say what particular intent follows from those acts." (People v. Barker, 137 Cal. 557, [70 P. 617].) And in People v. Johnson, 131 Cal. 511, [63 P. 842], the court in a similar case says: "As he did not have sexual intercourse with her, but did assault her, the question as to his intent was to be determined by all the circumstances and by the acts of defendant." To the same effect is People v.Webster, 111 Cal. 382, [43 P. 1114]. Every act and circumstance surrounding the transaction is inconsistent with any inference other than an intent on the part of the defendant to use such force and violence as he might deem necessary to the accomplishment of his expressed purpose. The fact that he abandoned the undertaking when the husband escaped from his perilous position in no wise affects the case. (People v.Stewart, 97 Cal. 240, [32 P. 8].) *Page 752
We have carefully read and considered the cases cited in appellant's brief, all of which, however, are readily distinguished from the case at bar.
Judgment and order affirmed.
Allen, P. J., and Taggart, J., concurred.