The case at bar seems to be one of first impression in the State of Nevada, and there are no decisions of the Nevada supreme court in point. However, the question of whether the conviction of assault and battery is a bar to the subsequent prosecution of attempted rape, based upon the same transaction, has been passed upon in other states and by the supreme court of the United States. 8 R.C.L. 146, sec. 131; 7 Cal. Juris. 959, sec. 100; People v. McDaniels (Cal.) 69 P. 1006; State v. Blevins (Ala.),32 So. 637; Bell v. State (Ga.), 30 S.E. 294; People v. Purcell, 16 N.Y. Supp. 199.
To be found guilty of the crime of attempt to commit a crime, two elements must be pleaded and proven: first, the intent to commit a crime; second, a direct act done toward its commission, and tending, but failing to accomplish it. State v. Dawson,45 Nev. 258; sec. 9975 N.C.L.
The matter before this court is one wherein the information specifically sets forth the fact that the overt act consisted of an assault upon the complaining witness; the further fact that the complaining witness did not consent to the acts complained of. Therefore, before the charge of attempted rape can be sustained, *Page 469 the state must prove the assault, and this assault was the same transaction which resulted in appellant's conviction in the justice's court of assault and battery. For in the absence of the complaining witness' consent, the mere intention to commit rape does not constitute a crime without the positive assault tending toward the accomplishment of the crime. We argue that where an attempt is charged, a completed offense of a lesser degree cannot be included therein. Furthermore, we argue that the offenses are not identical. The statutes specifically define assault and battery as a misdemeanor, and fixes the penalty; they also define attempted rape, and fix a different penalty. The latter offense is a felony. The justice's court, which had jurisdiction over the misdemeanor, had no jurisdiction over the felony. 16 C.J. p. 239; Brown v. State,120 Ala. 378, 25 So. 203; State v. Fox, 83 Conn. 286, 76 A. 302; Alford v. State, 25 Fla. 852, 6 So. 857; State v. Jameson,104 Iowa, 343, 73 N.W. 831; Peterson v. State, 79 Neb. 132,112 N.W. 306, 14 L.R.A. (N.S.) 292; State v. Rose, 89 Ohio State, 383, 106 N.E. 50, L.R.A. 1915A, 256; Hamlin v. State, 8 Okla., C.R. 187,126 P. 704; State v. Cross, 44 W. Va. 315, 29 S.E. 527; State v. Nichols, 38 Ark. 550; Cooke v. State, 77 Miss. 800, 27 So. 605. The case of Crowley v. State, an Ohio case, reported in L.R.A. 1917A, at p. 661, is identical with the case at bar, and sets forth the majority rule.
The legal proposition that the same act or group of acts may constitute two or more distinct offenses, different in kind as well as degree, is supported in the cases of State v. Jellison (Me.), 70 A. 716; State v. Hattabough, 66 Ind. 223 (reported as a footnote to the case of State v. Littlefield, 35 Am. Rep. 339). *Page 470
"That the said defendant on the 8th day of May, A.D. 1934, or thereabout, and before the filing of this information, at and within the County of Washoe, State of Nevada, did, then and there, being then and there a male person over the age of sixteen years, to wit, of the age of about forty-nine years, willfully, unlawfully and feloniously, attempt to carnally know the person of one, Alice Tillman, a female child under the age of eighteen years, to wit, of the age of fifteen years, by inducing the said Alice Tillman to go into his dwelling house at No. 3 Seventeenth Street, City of Sparks, Washoe County, Nevada, and by locking her in said dwelling house and forcibly and violently throwing and struggling with her upon a bed therein and by pursuing her from said dwelling house and forcibly restraining and struggling with her on the ground in the yard of said premises and endeavoring, but failing so to do, at said places, to have sexual intercourse with her, the said Alice Tillman, all with the felonious intent then and there to rape her, the said Alice Tillman."
Upon arraignment, in addition to the plea of "Not Guilty," pleas of former conviction and jeopardy for the offense charged were entered without objection on the part of the state. Upon the trial, and when the state rested its case, the defendant, in support of his special pleas, offered in evidence the record of the proceedings in the justice's court of Sparks Township, Washoe County, Nevada, entitled "The State Vs. Andy Holm," from which it appears that on the 9th day of May, 1934, the defendant was arrested upon a warrant issued out of said court charging him with the crime of assault and battery on the person of Alice Tillman, *Page 471 and on that day was committed to imprisonment in the county jail of Washoe County for the period of 180 days. In support of his plea of former jeopardy, the defendant offered evidence to show that the charge of assault and battery in the justice's court was predicated upon the same criminal transaction described in the information in the district court. The proffered evidence was rejected, and the case was submitted to the jury upon the plea of not guilty only. The defendant was found guilty of the offense charged in the information, whereupon he was sentenced to state's prison for the period of not less than 5 nor more than 20 years, where he is now confined. The defendant appeals from the judgment and from an order denying a new trial.
The issues raised by the defendant's special pleas were for the jury, subject, of course, to the right of the court to decide upon the competency and relevancy of the evidence offered in support of the pleas. State v. Johnson, 11 Nev. 273. The trial court, in its ruling upon the motion for a new trial, considered that the proffered evidence of former conviction and once in jeopardy for the offense charged was neither competent nor relevant as a defense or bar to the defendant's prosecution for the offense of an attempt to carnally know the prosecutrix, Alice Tillman, as charged in the information. I am in accord with this view of the applicable law. In the first place, the offense of assault and battery was not an offense necessarily included in the information, as the term "an offense necessarily included" is used in section 263 of the criminal practice act, sec. 10911 N.C.L. The offense of assault and battery was an entirely different offense, in that it lacks the essential element of an attempt with intent to carnally know the prosecutrix under the age of 18 years, which constitutes rape. Section 10124 N.C.L. The term "an offense necessarily included," as used in section 10911 N.C.L., has been held to mean a lower degree of the crime charged or a minor offense of the same character, predicated upon the same act, but does not apply to a different act. State v. Gaimos,53 Mont. 118, *Page 472 162 P. 596. The essential element of the offense of assault and battery was force and violence upon the person of the prosecutrix without any intent to carnally know her, in violation of the statute upon which the information before us was grounded. Though the attempt to carnally know the prosecutrix was accompanied by force, force was not an essential ingredient of the crime of carnal knowledge of the prosecutrix under the age of 18. State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754.
Counsel directs our attention to section 10911 N.C.L., which provides as follows: "When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information."
The statute seems to contemplate that, for a plea of former conviction or jeopardy to be available as a defense or bar to a subsequent prosecution, it is necessary for the accused to have been proceeded against by indictment or information in a court of competent jurisdiction. If, as argued on behalf of the accused, the assault and battery charged in the justice's court was an offense necessarily included in the information in the district court, the justice's court was clearly without jurisdiction of the offense. I am in accord with the ruling of the trial court that the proffered evidence in support of the defendant's pleas was insufficient as a matter of law to constitute a defense or bar to the prosecution of the defendant for an attempt to commit statutory rape.
The judgment and order denying the motion for new trial should be affirmed.