Appeal from a conviction of attempt to commit rape and from a sentence imposed thereon. The assignment of error *Page 542 which presents the question on which our decision must turn is the one which asserts error in permitting the case to go to the jury on an alleged insufficiency of evidence of intent to commit rape and insufficiency of evidence of an overt act, necessary to prove attempt.
The evidence is as follows: On October 10, 1937, defendant was playing a marble game at the Holland Inn, a public place in Salina, Utah. This attracted the attention of two girls each about ten years old. Defendant permitted them to push the lever or spring and gave them a nickel each and candy bars. Later he inquired if they wished to win some further money and invited them to meet him at the creek bridge over Salina Creek just out of Salina in about fifteen minutes. This they consented to do. The overtures were carried on in an undertone so that no one in the same room heard them, yet the departure of the girls with the defendant following them was noted by an older girl and two boys. This trio followed Mortensen. At the bridge defendant told the girls to go farther up the creek where he later joined them going by a different route. At this point he made arrangements for meeting them at a still more secluded place. At this rendezvous he solicited one of the girls with money to permit him to hug and kiss her and "have fun." He induced her to "ditch" her companion after having given each a nickel. He then repeated his request to the remaining girl to "have fun" with him. The evidence shows that there was about his entire conduct that which made the girls wonder whether he wanted to play "dirty" or "nasty" with them, but just what that meant to these girls is nowhere suggested or indicated. The girl testified:
"He said he would have a little fun and he would kiss me and hug me a little bit. Then he said, `You sit down,' and I wouldn't do it and he started to slide toward me and I moved back."
She asked what he was going to do and he said, "Just have a little fun, and if I hurt you I will give you a quarter and you can go home." Then the girl's father came, having been *Page 543 notified by the trio who followed Mortensen. He testified at the time he broke through the brush his daughter was three feet away from defendant.
I. While the jury had the advantage of witnesses' demeanor, there is nothing in the record nor could there be anything in the demeanor which would indicate what defendant really intended to do. The fact that he contemplated he might "hurt" her does not show that he intended to commit rape because he could have hurt her by taking indecent liberties. If, however, he had without words approached her with his penis exposed, or 1 indicated by other acts that he intended to have intercourse with her, the jury could have inferred from his acts the intent. But as the case stands the minds of the jury would have to speculate as to what his intent was. It is not the case of permitting the jury to select inferences where one or more inferences might be drawn. In this case there is a dark area through which the mind of the jury must proceed from the evidence to a conclusion which makes such conclusion not one resulting from an inference but one resulting from a guess or speculation. This is not a case which is exemplified by People v. Stites,75 Cal. 570, 17 P. 693, where one while apprehended secreted a bomb, or like the illustration given in Commonwealth v.Peaslee, 177 Mass. 267, 59 N.E. 55, where a person went into a stall with a poisoned potato. In such cases the intent to use the thing in possession may be inferred from the possession plus other circumstances. But this cannot be the same in rape because no inference can be taken from the mere possession of something, the possession of which the accused cannot dispense with. Hence, unless there are some indications by expression or by conduct which would indicate that what the defendant accused of attempt to rape was going to do was actually to have intercourse with the girl, the intent to commit rape, which is an element in the crime of attempting to commit rape, is not made out. There was in this case not sufficient evidence of intention to commit rape. *Page 544
II. There was not an overt act sufficient to constitute an attempt to commit rape. There was nothing but solicitation and persuasion, coupled with a "sliding" movement of defendant while seated on the grass. The legal 2 inability of a girl under thirteen to give consent to sexual intercourse with a man not her husband cannot make an overt act that which does not tend to effect the commission of the crime.
What constitutes an overt act under the statute is characterized as an act "done with intent to commit a crime, and tending but failing to effect its commission." Sec. 103-1-29, R.S.U. 1933. In this case the act which it was sought to characterize as an overt act was the "sliding" motion toward the girl. In order to hold this an overt act, it 3 must have been done with the purpose to commit an act of intercourse with the girl. But there is no evidence that it was intended for that purpose, partly because there is no evidence that he intended even to commit rape. From all that appears he may have been moving towards her merely to further his solicitations or to "have fun" in other ways than the committing of rape.
It is uniformly held that there must be an overt act tending, and fairly designed to effectuate, the commission of the crime of statutory rape. Rainey v. Commonwealth, 169 Va. 892,193 S.E. 501, 502; Rose v. State, 32 Okla. Crim. 294, 240 P. 754;People v. Parker, 74 Cal. App. 540, 546-547, 241 P. 4 401; State v. Gill, 101 W. Va. 242, 244, 245,132 S.E. 490; McEwing v. State, 134 Tenn. 649, 654, 655, 185 S.W. 688; Inre Lloyd, 51 Kan. 501, 33 P. 307, 308; Perrin v. State,50 Okla. Crim. 237, 297 P. 314, 315; Weaver v. State, 16 Okla. Crim. 564,185 P. 447; State v. Harney, 101 Mo. 470, 14 S.W. 657; 52 C.J. 1032; 22 R.C.L. 1235; 33 Cyc. 1431. Several borderline cases are hereunder given, some holding that an attempt had been committed and others that the acts fell short of that. But in all of the cases where it was held that an attempt had been made there were acts which *Page 545 showed definitely an intent of the man to use his privates, which act was one also in the course of the process directly designed to the consummation of the intercourse and past the line of preparation. People v. Welsh, 7 Cal. 2d 209, 60 P.2d 124;Rainey v. Commonwealth, supra; Vaughn v. Commonwealth,262 Ky. 588, 90 S.W.2d 1037; State v. Pierpoint, 38 Nev. 173,147 P. 214; Payne v. Commonwealth, 110 S.W. 311, 33 Ky. Law Rep. 229; McEwing v. State, supra; Hart v.Commonwealth, 131 Va. 726, 109 S.E. 582.
In all of the above cases the overt act charged and proved was fairly designed to accomplish the act of intercourse. All present acts involving the commission of the crime and had started on their way to consummate the ultimate act of intercourse intended. In the present case there is no act which can be said to be designed to accomplish the act of intercourse. Without such an act there can be no "attempt" to commit rape.
The following cases hold that the acts had not gone far enough to constitute an attempt. In State v. Gill, supra, it was said [page 491]:
"The evidence of Gladys is that she and the defendant were alone for about 15 minutes in an automobile, with the lights turned off, one dark night near midnight, on a country road, during which period the defendant held her in his arms; that he put one hand under her dress; that she told him to stop and he did stop; that he did not `get hold' of her body or any part of her person; that he did not say what he was trying to do; and that he did not try to have sexual intercourse with her. * * * The reports are replete with cases in which the conduct of the defendants was even more contemptible than that of Gill, and in which the liberties taken were far more indecent than those taken by him, but wherein convictions were not sustained. See cases already cited, and Stoker v. State, 93 Tex.Crim. R.,245 S.W. 444; Anderson v. State, 77 Ark. 37, 90 S.W. 846;Commonwealth v. Merrill, 14 Gray 415, 77 Am. Dec. 336; State v. Perkins, 31 S.D. 447, 141 N.W. 364; State v.Riseling, 186 Mo. 521, 85 S.W. 372." Weaver v. State, supra; State v. Harney, 101 Mo. 470, 14 S.W. 657. *Page 546
No case has been found where conviction was sustained on facts so questionable and an alleged overt act so equivocal as in this case. The judgment is reversed. 5
FOLLAND, C.J., and MOFFAT, J., concur.