State v. Perkins
171 Iowa 1
Iowa
1915
Check Treatment
Deemer, C. J.

law : trial.- instructions: inciudea offenses: duty to submit — The indictment charges the crime of rape with force and arms, and the making of an assault upon the prosecutrix, Bessie Irene Miller; and the sole question raised by the appeal relates to the failure of the trial court to charge that assault and bat- . , , , „ . . . . , „ - tery was an included offense, of which deiend- * ant might be convicted. The indictment was broad enough to cover this offense, and the testimony tended to show not only an assault, but an actual battery.

In these circumstances, the trial court should have instructed upon the included offense, and left it to the jury to say whether or not the defendant should have been convicted of this offense, rather than some higher degree of crime. State v. Kyne, 86 Iowa 616; State v. Hutchinson, 95 Iowa 566; State v. Barkley, 129 Iowa 484; State v. Egbert, 125 Iowa 443; State v. Trusty, 118 Iowa 498; State v. Harrison, 167 Iowa 334.

Neither the fact that defendant was convicted of an assault with intent, nor that the court did instruct as to simple assault, obviates the error in failing to instruct as to assault and battery. This is pointed out in the authorities already cited.

To avoid misapprehension, it is to be observed that the prosecutrix was over the age of consent, she being twenty years of age.

*3For tbe error pointed out, the judgment must be, and it is, reversed and the cause remanded. — Reversed md Remanded.

Ladd, Gaynor and Salinger, JJ., concur.