223 N.W. 554 | Iowa | 1929
I. The information charges:
"That the said William Blair, on or about the 28th day of May, A.D. 1927, in the county of Carroll and state of Iowa, * * * did willfully, unlawfully, and feloniously, carnally know and abuse one Eldora Struve, she being then and there a female child under the age of 16 years, all against the peace and dignity of the state of Iowa, and contrary to the statute in such case made and provided."
The defendant's principal point is that the only evidence offered by the State on the subject is to the effect that a completed rape by actual penetration was accomplished; that such proof "disproves a charge of attempt to rape * 1. INDICTMENT * * disproves assault with intent to commit;" AND that the verdict of guilty of assault with INFORMATION: intent acquits the defendant of the only offense rape: of which there is any evidence, namely, included completed rape; that the testimony to the effect offense. that sexual intercourse was consummated was rejected by the jury as incredible, and that such rejection of the evidence left nothing upon which to base a conviction of assault with intent; that the verdict also discredits the corroboration. Defendant argues that the consummated crime and attempt to commit it are separate and distinct offenses; that a *231 failure of consummation is an essential element of the offense of attempting to commit.
The argument and the cases cited are largely devoted to a discussion of common law or statutory crime of "attempt" in other jurisdictions, rather than the crime of assault with intent to commit defined by our statute, of which the defendant was convicted. Whether there is a distinction between the common-law or statutory offense of attempt to commit rape in states where such attempt is made a crime, and the offense of assault with intent to commit as defined by our statute (Sections 12966, 12968, Code, 1927), we do not pause to consider, there being no common-law crimes in this state (State v. Banoch,
Defendant leans heavily on State v. Mitchell,
"In so doing they have found against the truth of her statements as to the principal fact testified to, while accepting her testimony as to minor matters. The explanation, and the only explanation, offered by the State for this result, is that the jury must have regarded her statements as to the manner in which the offense was consummated as incredible, and that they accepted so much as might have been true. * * * There is no other testimony in this case of any fact or circumstance, or of any act or declaration of the defendant, which is inconsistent with his entire innocence of any offense. The conviction, therefore, rests solely on the testimony of a witness whom the jury by their verdict have discredited and disbelieved as to the most important fact stated by her on the witness stand, and the fact concerning which, above all others, she could not possibly be mistaken. * * * Section 418 * * * `No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person * * *." (We have not such a statute.)
In that case, the prosecuting witness was of the age of 18. She testified to the completed perpetration of the act while in a position in a buggy which the jury evidently found would make it impossible. The prosecuting witness here was 11 years old, inexperienced and uninformed in such matters. Her testimony was corroborated. On the record here, the jury might find that the defendant entertained toward the prosecuting witness lewd intentions, and therewith, in a state of partial or entire undress, got into the bed of the prosecuting witness with her, as testified to by the State's witnesses, and that his purpose was to have sexual intercourse with her. State v. Roby,
"We cannot too often say that our position does not challenge decisions like State v. Barkley, 129 Iowa, at 485, to the effect that, when the proof of rape of necessity includes every included offense, than one who has been guilty of one of the included offenses only, may not `complain of the leniency or mistake of the court in his favor.' We are not saying that when, under the evidence, defendant might rightfully have been convicted of rape, that he can complain of a conviction for less than rape. * * * The question is whether there may be a conviction for assault to commit where the only evidence is to a completed act."
If a consummated rape was perpetrated, there was necessarily an assault with intent to commit rape. The jury might find that the completed offense of rape was not consummated, and still find sufficient evidence of the assault.
It is further urged that there is no dispute on whether there was a consummated act; that the testimony does not dispute it; that it contradicts only the degree of penetration.
It is true that, on the doctor's testimony, there might have been sufficient penetration to constitute the crime of rape. The jury might well have found the defendant guilty of that crime. Nevertheless, it remains true that there is 2. INDICTMENT sufficient evidence of the commission of the AND crime of assault with intent, and the case is INFORMATION: within the rule that defendant may not complain included of conviction of a crime of a lesser degree than offenses: that which the evidence requires or warrants. estoppel State v. Barkley,
II. Defendant argues that evidence of good character "may of itself, by the creation of a reasonable doubt, produce an acquittal," and that the court did not so charge. The instructions upon this point are to the effect 3. CRIMINAL that accused may prove, as a circumstance in his LAW: defense, his previous good character as to the evidence: trait involved; that previous good character is good not in itself a defense, but is a circumstance character. to be considered with all the other evidence in determining guilt or innocence; that it may be sufficient to *234
generate a reasonable doubt, and entitle the defendant to an acquittal, even though, without such proof of good character, the jury would convict; that it should be given consideration, regardless of whether other evidence is conclusive or inconclusive; and that it was for the jury, under all the facts and circumstances in the case, to determine what weight should be given to such evidence. We are of the opinion that the defendant has no cause to complain of this instruction as not giving him the benefit of the full value of his evidence of good character.State v. Bosworth,
III. Error is assigned on the refusal of a number of requests to charge. One requested instruction was that a reasonable doubt might arise from the fact that the State put in no testimony of medical men, and that there was no testimony of 4. CRIMINAL injury to the parts, or of hemorrhage. Another LAW: was that reasonable doubt might arise from the instruc- failure of prosecutrix to make an outcry, and tions: undue that, if she made the complaint at all, it was particula- not made reasonably close to the time of the rization or offense. Another was, in substance, that, while emphasis. it cannot be expected that children of tender years will give testimony as clear and free from contradictions as might be expected of an adult of average intelligence, still the jury should take into consideration the appearance of the children, whether their testimony is clear and candid, frank, as ready in response to one side as to the other; and that, though the court had found them to be legally competent, they were still of such tender years that the jury were at liberty to find that they did not have as full an understanding of the obligation of an oath as is possessed by the adult of average intelligence.
Another request was to the effect that the fact that the court has found that the children were legally competent witnesses does not take from the jury the right to weigh their testimony in the light of matters of common knowledge, and that it is a matter of common knowledge that a child of tender years is capable of being "molded like clay in the potter's hands," more easily influenced than the average adult by what is repeated to it; that in children of tender years no reasonable person would expect complete power of discrimination; and that "more or less undesigned coloration and miscoloration is almost inevitable, and it is a matter of common knowledge, because even among mature *235 witnesses it is not always easy to discriminate" between knowledge and hearsay.
It is not, of course, the province of the court to tell the jury what are and what are not matters of common knowledge. It is not the duty of the court to attempt to marshal the evidence, nor to emphasize particular phases or circumstances and resultingly to minimize or obscure by silence others. The court should not, by selection or otherwise, create in the minds of the jury the impression that certain phases of the evidence have particularly appealed to the court, or have been accepted by him. Instructions should not be argumentative, or unreasonably long or confusing, or misleading. It is not a proper use of requests to charge to utilize them as a snare to involve the court in error. The court is invested with reasonable discretion in the scope, plan, and formulation of his instructions. State v. Mueller,
The court gave the usual instructions on the subject of reasonable doubt, and told the jury that they were the sole judges of the weight and credit to be given to the testimony of the several witnesses, and that they should take into consideration, among other things specified, the witnesses' particular intelligence or want of intelligence, reasonableness or unreasonableness of their story, and whether they were disputed or corroborated; that, in determining the weight to be given to the testimony of the three children, the jury might, in addition, take into consideration their understanding of the obligations of an oath, their capacity to comprehend the distinction between right and wrong, as disclosed by their voirdire; that, though the court had found the children legally competent, the fact remained that they were of such tender years that the jury were at liberty to find that they did not have as full an understanding of the obligation of an oath as that possessed by an adult of average intelligence. The jury were told what was meant by understanding the obligation of an oath.
We are of the opinion that the court sufficiently stated to the jury the rules of law governing the consideration of the evidence in the determination of the case.
The court submitted, as an included offense, that of simple *236
assault, but not that of assault and battery. The defendant complains because of the failure of the court to submit to the jury the crime of assault and battery. The 5. RAPE: indictment having charged the crime of statutory included rape, it charged the included offense of assault offense: and battery. See State v. Hoaglin,
Under the record in this case, the defendant was guilty of either rape or assault with intent to commit rape, or not guilty at all. We find no prejudicial error. — Affirmed.
ALBERT, C.J., and De GRAFF, KINDIG, and WAGNER, JJ., concur.
