My doubts about this case cause me to concur in the opinion.
The girl evidently in some fashion suffered a basal fracture of the skull which caused her to lose all memory of what happened to her while in the company of the accused. There was evidence that her clothes had been disarranged, and that her hymen had been "nicked," but this might have been caused by means other than rape. She was also bruised about the body and there were blood spots on her undergarments. There was also evidence that she had been carried and deposited on the spot near her home where she was found, thus contradicting defendant's testimony that *Page 491 she got out of his car about a block from her home and started to walk home. If the girl in jumping from the car was dragged certainly the defendant would hardly have been chasing her as one witness said he saw happening when he threw his spot light upon them both. Unfortunately the girl who was the only person besides the defendant who could testify as to what happened, suffered an amnesia. While I can readily understand that a jury might conclude that when a girl had been out with a married man all night and was found unconscious in a position that implied care in setting her down, with evidence that her body and especially her sexual parts had suffered some injury, and there was evidence that her escort's professed solicitude was not to be taken at its face value, it might conclude that he had raped her. In order to do so, however, the jury would have had to conjecture rather than infer. The evidence that her hymen had not been broken but only "nicked" would rather favor the view that sexual intercourse had not taken place. While I do not think there is the utter lack of testimony "that defendant in any way touched the girl except that when she got out of the car * * * he got her and put her back in the car," the fact that the jury may have thought the defendant was lying, plus the other circumstances in this case, do not add up to attempted rape. There must be some evidence of an overt act which if carried to consummation would have been rape or which was intended to consummate rape. As in the case of State v.Mortensen, 95 Utah 541, 83 P.2d 261, this is lacking. There was a basis for strong conjecture not quite reaching a sufficient basis for inference.
McDONOUGH, J., concurs in the result.
PRATT, J., concurs for the reasons given by Mr. Justice WOLFE. *Page 492