119 Iowa 15 | Iowa | 1902
Tbe defendant pleaded not guilty to tbe indictment January 7, 1901, and on bis motion tbe case was continued to the next term of court. At tbe next term, and on March 25th, the state filed a motion asking that the case be not taken up for trial until March 27th,
Section 5373 of the Oode forbids the introduction of a witness in support of the indictment who was not examined before a committing magistrate or the grand jury, unless a notice in writing, stating the name of such witness and the substance of what it is expected to prove by him, shall have been served upon the defendant at least four days before the commencement of the trial. The same section further provides that: “'Whenever the county attorney desires to introduce evidence * * * of which he shall not have given said four days’ notice because of insufficient time therefor since he learned said evidence could be obtained, he may move the court for. leave to introduce such evidence, giving the same particulars as in the former case, and showing diligence, * * * whereupon, if the court sustains said motion, the defendant shall ele^t whether said cause shall be continued on his motion, or the witness shall then testify.”
IV. The defendant requested the court to give the jury an instruction as follows: “The crime charged in the indictment includes the minor offenses of assault and
Y. As one of the grounds in his motion for new trial, the defendant charged misconduct on the part of the county attorney, in that by “inference he referred to the ■ fact that the defendant had not elected to testify as a witness in his own behalf.” No record of the alleged misconduct was made at the time of the argument to the jury, and defendant relies upon a statement with reference thereto, made by the county attorney during the hearing upon the motion for new trial, to the effect that in his argument to the jury he had referred to the fact that there had been no denial by witnesses of a conversation alleged to have taken place at the house of defendant at the time of his arrest; also there was no denial as to the time of day when one of the witnesses had passed the defendant on the highway. The provision of the statute is that the attorney for the state shall not refer to the fact, during the trial, that the defendant has not testified in his own behalf, and, should he do so, the defendant shall be entitled, for that cause alone, to a new trial. Code, section 5484.
In this case it appears that the prosecutrix was a chaste woman, and had never given defendant any reason to think he could have sexual intercourse with her. There certainly is evidence in the record tending to prove that an assault was committed by defendant, and that his de'sire, at least, was to have sexual intercourse with the prosecutrix. There is also evidence tending to prove that he made no effort to obtain a consent to his embraces, but proceeded at once to forcibly secure satisfaction of his sexual passion by pushing the prosecutrix down upon the floor and getting upon her body. She resisted his advances, and in the struggle was bruised in several places. He forcibly attempted to tear apart her underclothing, andj it would seem, desisted only when it became apparent that her repeated outcries would probably attract the attention of others, and lead to his detection and exposure. He then, as a condition to letting her up, made her promise never to reveal the fact of his assault. This she promised, whereupon he let her go, and went away. We think the evidence was sufficient to. warrant a submission of the same to the jury. Taking the facts to be as stated, and such was found by the jury, then, surely there was sufficient to justify the conclusion that the defendant when he made the assault intended to force the prosecutrix to submit to his desire within the meaning of the statute upon which the indictment was based.
We have carefully examined each of the errors assigned, and we reach the conclusion that the judgment was warranted, and it is aeeirmed.
This and the two following cases are published out of their chronological order by reason of motions for rehearing. •