118 Iowa 498 | Iowa | 1902
While a great number of questions are argued, the record is in such condition that we may consider but one, and that relates to the failure of the court to instruct as to included offenses. One count of the indictment charged the defendant with unlawfully, willfully, and feloniously making an assault upon the prosecutrix, and carnally knowing and abusing her; another, with carnal knowledge and abusé of the girl, who, it is alleged,' was imbecile, and unable to understand the nature of, or to consent to, the act. The prosecutrix testified, among other things, that defendant told her to come into the bedroom. “He told me to set down on the bed. He told me to lay down. I told him I did not want to, but I could not help myself. I could not get away from him, as he had me down. I started up, and he said I should come, and he grabbed for me, and I was afraid I would get a licking. He made me lay down. He pushed me over after he made me come back. He called me to the bedroom, and forced me to do that. He laid me down on the bed and pushed me. Knew it was not right, but I could not help myself, and was forced to it.” There was some question regarding the age of the child. Her mother testified that she was over fifteen, and there was some other evidence tending in the same direction. The defendant was a witness in his own behalf, and denied having had intercourse with the girl, but did not specifically deny the assaults. He simply said that he did not have intercourse with the g-irl at any time.
The court submitted but the one question, — guilty or not guilty of the crime of rape. In this there was manifest The charge included not only rape, but assault
For the error pointed out, the judgment is reversed and the cause is remanded for a retrial. — Reversed.