56 Iowa 29 | Iowa | 1881
I. It is assigned as error that the indictment does not show the name of the person alleged to have been ravished.
The Attorney General concedes that it would have been proper to instruct the jury that,.under the indictment, the defendant might be convicted of a simple assault, but he contends that a failure to so instruct, in the absence of a request to that effect, is not reversible error.
If the error complained of consisted simply of a lack of fulness in the instruction given, a different question would be presented. But the instruction affirmatively precluded the jury from finding a verdict of a simple assault. Where an instruction contains an affirmative error, we cannot sustain it merely because the appellant failed to ask an instruction which would have contravened it, and expressed the correct rule.
The question involved in this case was decided in State v. Walters, 45 Iowa, 390. State v. Vinsant, 49 Iowa, 244; State v. Glynden, 51 Iowa, 463.
For error in the instruction given the judgment of the court below must be reversed and the case remanded for another trial.
Eeversed.