Under the record on this appeal, I am not able to concur in Mr. Justice WIEST'S opinion for reversal and discharge of defendant.
It may first be noted that the crime of taking indecent liberties charged is not a lesser offense included in the other crime charged — statutory rape. It is an entirely separate offense; but under the statute (Act No. 175, chap. 7, § 82, Pub. Acts 1927, as added by Act No. 309, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17293-3, Stat. Ann. 28.1022), quoted by my brother, and for reasons which seem obvious, one may be prosecuted under an information which contains separate counts in which the respective offenses are charged.
Admittedly there was testimony in support of the charge of rape, and the jury did not convict defendant of that charge. But this result may well *Page 431 have come about because testimony in behalf of defendant raised a reasonable doubt as to his actually having had sexual intercourse with the prosecutrix. But it does not follow that there was no evidence of an assault or of taking indecent liberties. The record contains ample testimony of each of these elements of the offense of taking indecent liberties as charged in the second count of the information, and of which defendant was convicted. In the respects just above noted we need refer but briefly to the record:
"Q. Did the defendant McGovern say or do anything during that night?
"A. Yes, sir.
"Q. What?
"A. He tried to have intercourse.
"Q. When he made that attempt, what did he do?
"A. Well, I didn't want to, but then he forced me to.
"Q. How did he do that; tell us what happened.
"A. I was just laying there and he wanted to have intercourse and I said `No.' Then he forced me to and I had to give in."
Notwithstanding the jurors or some of them, because of testimony relative to defendant's physical condition, may have had a reasonable doubt that sexual intercourse actually was consummated, still the foregoing as well as other portions of the testimony made an issue of fact for the jury's determination as to whether defendant committed an assault upon and took indecent liberties with the prosecutrix. The jury found defendant guilty. The verdict and sentence is affirmed.
BOYLES, C.J., and BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with NORTH, J. *Page 432