158 Iowa 619 | Iowa | 1912
The charging part of the indictment is as follows: ‘ ‘ The said William McKinnon on or about the 10th day of September, in the year of our Lord one thousand nine hundred and eleven, in the county aforesaid, did willfully, unlawfully, and feloniously ravish ¡and carnally know one Jessie Glanville, then and there being, the said Jessie Glanville being then and there a girl of the age of twenty years, and naturally imbecile and weak in mind, and deficit in understanding, to such an extent that she did not know or comprehend the nature of the act, and naturally of such imbecility of mind and weakness of body as to prevent her making effectual resistance to said defendant and his unlawful act, contrary to and in violation of law and against the peace and dignity of the State of Iowa. ’ ’ In support of the indictment the state offered evidence tending to show that the prosecuting witness was naturally of such imbecility of mind as to come within the classification of the statute. The defendant was not a witness in his own behalf.
I. On behalf of the state, the illicit intercourse was proved by the testimony of the prosecuting witness and by corroborative evidence which was all but conclusive. On the question of the mental condition of the prosecuting witness, many witnesses, both expert and nonexpert, testified. All such testimony tended to show that the prosecuting witness was not normal in her mental development. She had considerable in
Dr. Cole testified: I would class her on the dividing line between a low mentality and an imbecile. She had-the will power to make the ordinary resistance in proportion to her intellectual power. I think she is. somewhat below the average girl of her age in intelligence. She has the will power between the highest class of imbecile and the low average person. I don’t think she would have the same power to distinguish between right and wrong that a girl of average mentality would have. I think her mental defects would lead her to yield to the desires and the importunities of a man-asking her for sexual intercourse easier than a girl of higher mentality. Imbeciles can’t resist temptations with the same degree that a person of average mentality can. The ability to converse is not always a true test of imbecility. Her physical defects are more abnormal that her mental defects. The symptoms point very strongly to a degeneration in one of the cords of the spinal column. She has enlarged tonsils and adenoids which makes it difficult for her to breathe, and causes mouth breathing.
Dr„ Burke testified: She is below the average in intelligence and brightness for a girl of her age. You would probably have to class her as an imbecile. She’d be a person with a weakened intellect, but she’d be above the average of intellect of an imbecile. She’d be a high-standard imbecile. Her ability to*623 choose her desires would be limited according to the amount of her intellect. The fact that she stated when asked to have sexual intercourse that she was afraid she would get in a family way would indicate reasoning power and intelligence, and the fact that she refused to tell her parents would indicate the same thing. She has many physical defects. (Cross-examination) : My entire testimony is based on the examination of last night. An imbecile is a person with an impaired mentality and intellect by various degrees. Most of her answers that she made us were in monosyllables. Jessie Glanville didn’t have the resisting power of the average girl of her age.
Dr. Irish testified in accord with the two preceding witnesses, and also: “I think her physical defects exaggerate her mental defects.”
The evidence as a whole leaves no room for reasonable doubt as to the imbecility of mind of the prosecuting witness to a noticeable degree. The defendant worked at the home of the prosecutrix for about three months prior to the illicit relation charged. He had also boarded there a short time in the previous fall. He appears to have recently come into the neighborhood. His previous history is not disclosed in the record.
We think in the state of the record the ruling was proper. We can see no aid to the defendant in the inquiry in this case to be had by any answer that might be given to the questions propounded. If it should appear that the other children were defective also, it could not aid the defendant. Neither would it aid him to show that they were not defective. If it were shown that they were as old as the prosecutrix when they learned to walk and talk, and were now mentally normal, it would not contradict or explain away the present condition of the prosecutrix. Even if the evidence were material for the defendant, its exclusion on the cross-examination was clearly within the discretion of the court.
Code is as follows: ‘ ‘ Carnal knowledge of im- ^ ^ ° decile or insensible female. If any person unlawfully have carnal knowledge of any female by administering to her any substance, or by ia.ny other means producing such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, or have such camal
(5) Even though you should find that Jessie Glanville was an imbecile or weak-minded, or below the ordinary girl in intelligence or will power, you would not be warranted in convicting defendant, unless such imbecility or weakness was of such an-extent’that by reason thereof she was prevented and unable to offer such resistance as would ordinarily be offered by the average girl of her age.
(6) Even though you should believe from the evidence that Jessie Glanville was of weak mind, but you should further find that she permitted defendant to have sexual intercourse with her because of her passions having been aroused, not induced by weakmindedness, it would be your duty to find the defendant not guilty.
(7) Effectual resistance as mentioned in the statute does not mean such entire resistance as would prevent the defendant from having sexual intercourse with her, but it means simply ordinary, usual, and fair resistance.
These latter were refused by the trial court. The point here made is not free from difficulty. It undoubtedly devolves upon the trial court to define the terms of an indictment or statute when such definition is necessary to their fair understanding by the jury. State v. Clark, 78 Iowa, 492; State v. Brainard, 25 Iowa, 572. This .is particularly so .when such technical terms are involved as are not within common use
7. requested instructions. We see no great objection to the requested instruction No. 5, nor can we say that the court necessarily erred in refusing it. As respects the real question ¡at this point, it amounted substantially to a repetition of the statute and of the instructions already given by the court. The real question at this point was the mental condition of the prosecutrix, as already stated. We do not think the requested instruction would render the statute any plainer ¡at that point. It is not wholly free from objection, in that it is so worded as to bear a possible objectionable construction, and as to direct the mind of the jury in the wrong direction. The question for the jury was not what an average girl “would ordinarily” do under the same circumstances. It is what she could do in a moral sense, and what she would be expected to do under the demands of her virtue. We think, therefore, that the court did not err in the refusal of any of the three requested instructions on this subject.
It is urged, however, that, even though the requested instructions were not proper, the subject was brought to the attention of the court in such a way as to impose upon it the duty of a proper instruction involving a definition of the statute. In view of the manifest difficulty and apparent impossibility of making the statute any plainer by definition, we think it devolved upon counsel to formulate and present a proper instruction which would aid in an understanding of the statute.
The judgment entered below is therefore Affirmed.