109 Iowa 72 | Iowa | 1899
The indictment charges that “the said 0. H. Desmond on the 8th day of January, 1898, did in and upon one Ora Bedman, a female child under the age of fifteen years, to-wit, eleven years of age, unlawfully, willfully, and feloniously make an assault, with the felonious intent then and there to willfully, unlawfully, and feloniously ravish, carnally know, and abuse the said Ora Bedman by force and against her will, contrary to law.” The evidence for the state tends to show that the facts involved in the alleged assault were substantially as follows: At the time specified in the indictment, and for several days prior thereto, the defendant and his wife and another man and his wife were engaged in
I. The district court permitted Edith Wright to testify that when she went behind the curtain the defendant told her to sit in a chair, and asked the number of her ticket; 1hat he
II. Edith Wright testified that she saw Ora just as she came out, and that Ora said that the defendant had “sprinkled some stuff on himself.” The objection of the defendant
III. Harvey Peyton testified as a witness for the defendant. He stated on cross-examination that he had written to the wife of the defendant, and was asked if he did not tell her this; “Just let me know what evidence you want, and it will be forthcoming,” or words to that effect. He was also asked if he did not, “about, the time of the other trial,” write to Mrs. Desmond that he would furnish her with evidence, if she wished it. An objection to each question was overruled, and the witness, in answer to the first question,
IV. The wife of the sheriff of Poweshiek county testified for the state that on a certain afternoon, when the defendant was in jail, and his wife was visiting him, she heard a noise in the jail, and thought they were trying to get out;
Y. The court charged the jury that it might find the defendant guilty of assault with intent to commit rape, of an assault and battery, or of an assault, or not guilty, as the evidence should warrant. It was said in State v. McDevitt, 69 Iowa, 549, that there may be an assault with intent to commit rape, without an assault and battery. In State v. McAvoy, 73 Iowa, 557, it-was said that “a defendant can be convicted of an offense distinct from the one specifically charged in the indictment only when such offense is an essential element of that charged, or when it is shown by proper averment in the indictment that a minor offense was in fact included in the one charged. The crime of assault and battery is not necessarily included in an assault with intent to commit rape. * * * To justify a conviction of assault and battery, then, on an indictment charging assault ydth intent to commit rape, it must be averred in the indict
VII. The eighth paragraph of the charge instrücted the jury, in arriving at a conclusion in regard to corroborating evidence, to consider, among other things, “the surroundings and circumstances of the parties being together, and any and
VIII. The first part of the tenth paragraph of the charge is as follows: “It is urged by defendant, and as a defense, that at the time of the acts complained of he was either of unsound mind, or that he was under the influence of some narcotic or intoxicant to such a degree that he was not responsible for his acts; and evidence has been offered tending to prove that fact.” The court then proceeded, at considerable length, to instruct the jury in regard to the