
    No. 227
    STATE v. DRISCOLL
    Ohio Supreme Court
    No. 17036.
    Oct. 10, 1922
    CRIMINAL LAW — RAPE—(1) Failure to charge as to include offenses, not error, when — (2) Un-contradicted evidence and failure to charge, may dispense with necessity for certain instructions, as to personality of the female.
    Crawford County Common Pleas
    Attorneys — Chester A. Meek, Pros, for State; Edward J. Myers, for Driscoll.
   MARSHALL, C. J.:

Epitomized Opinion

The prosecuting witness, Gladys Cosgrove, aged 17 years, procured a taxicab, at a public station, in Bucyrus, to take her to her home, about three-fourths of a mile distant. The defendant, an employe of the taxicab company, started to take her, but instead of going directly, drove into the country and criminally assaulted her, against her continued resistance. The defendant contradicted the girl’s' story and endeavored to make it a case of consent. He was found guilty, and the common pleas rendered judgment against him. .

The Court of Appeals reversed .the judgment for alleged error in the charge, and particularly refused to disturb it. on the weight of evidence. The 'Court of Common Pleas had failed to charge the.jury that rape included the lesser .offenses'Of . assault, and battery, and had omitted to enumerate as" elements necessary to a conviction, the fact that the person alleged to have been raped was a person other than the daughter or sister of the accused or female person under twelve years of age. These two points were assigned as error, but the Court of Appeals refused to reverse upon the first one, on the ground that no request had been made by the accused for such an instruction, but did reverse the judgment upon the second one. The Supreme Court in reversing the Appellate Court upon this point held:

1. Upon the trial of an indictment.for rape, where the defendant admits the act of intercourse, and defends upon the sole ground of consent, it is not error for the court to omit to instruct the jury that they may find the defendant not guilty of- rape but guilty of assault and battery or assault.

2. Upon an indictment of rape charging the defendant with carnal knowledge of a female person other than the daughter or sister of the accused, and not being a female under twelve years of age, where the uncontradicted evidence shows such female to be no relation to the 'accused and to be over twelve years of age, the omission by the trial judge to instruct the jury that they must find the subject of the rape was a female person other than the daughter or sister of the accused and not under twelve years of age, without any request on the part of counsel for the accused for such instruction, is not reversible error.  