Danaher, Senior Circuit Judge, and McGowan and Tamm, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
That physical facts in some circumstances may tend to establish essential corroboration of the corpus delicti in a case arising under D.C.Code Section 22-501 is clear enough, United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969); Coltrane v. United States, 135 U.S.App.D.C. 295, 300 n. 24, 25, and 301, 418 F.2d 1131, 1136 n. 24, 25, and 1137 (1969). But it is equally clear that in such a case there must be evidence, subject to such corroboration, that the accused sought to achieve carnal knowledge with force and against the consent of the victim. On this aspect, there can, and often will, arise a question preliminarily to be decided by the judge whether the evidence is legally sufficient to allow the case to go to the jury. Coltrane v. United States (supra) 135 U.S.App.D.C. at 303, 418 F.2d at 1139; Cooper v. United States, 94 U.S.App.D.C. 343, 346, 218 F.2d 39, 42 (1954); Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963). In Baber we concluded that a motion for directed verdict should have been granted where adequate proof was lacking that the accused intended to accomplish his purpose with force and against the consent of the female. See Allison v. United States, 133 U.S.App.D.C. 159, 164-165, 409 F.2d 445, 449-450 (1969), where we directed the entry of a judgment based upon a lesser included offense; and see United States v. Huff, 143 U.S.App.D.C. 163, 168, 442 F.2d 885, 890 (1971); United States v. Bryant (supra).
Here we find a departure from the usual Section 501 case where applicable criteria initially arise from the victim's complaint. The instant victim was mentally retarded, as the government stipulated. Although twenty-seven years of age, the woman had the "mind of a small child, around about seven years old, probably," her mother testified. That is "the reason why she is not going to testify," government counsel informed the jury. She was not called.
The trial judge in due course observed that "in a case of this sort ordinarily we have to talk about corroboration of the complaining witness' testimony, and I haven't any complaining witness' testimony."
The prosecutor replied, "Yes, I think corroboration is necessary."
The "corroboration" requirement, of course, as above noted, is here to be related to that element of the offense as charged that the accused sought to achieve carnal knowledge with force and against the consent of the victim.
Certainly that element may be established by circumstantial evidence, when, as here, the victim is incompetent to testify. Some states have legislated on this specific point, indeed yet others like Virginia and New York by statute additionally have ranked in like category, inmates of institutions for the deaf, dumb and blind. *fn1
Our statute in terms omits "forcibly" and so dispenses with the consent aspect respecting a female child under sixteen years of age. Section 22-2801 (1967). We have no doubt that section, in a case like the present will be read to define, and so to apply the language found in Section 22-501 predicating the instant indictment.
Even so, the necessity for proof of the charge in its entirety remains just as spelled out in United States v. Huff, supra and United States v. Bryant (supra). See, generally, Johnson v. United States, 138 U.S.App.D.C. 174, 426 F.2d 651, (enbanc, 1970), Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1960).
Here, as defense counsel argued in support of his motion for acquittal, the prosecutor later conceded "I think there is evidence in the case for giving simple assault."
We think that motion should have been granted respecting the charge set out in the indictment.
Conversely, it was abundantly shown that an assault had been committed, and as a lesser included offense, a judgment of guilty ...