28 Iowa 397 | Iowa | 1869
Lead Opinion
The testimony shows that the prosecutrix was, at the time of the commission of the offense, about sixteen years of age, of good size and usual health, but weak intellect. Her father testified that she “ was of very weak mind, and could not talk so as to be understood.” She was occasionally sent on errands to nearest neighbors, but “ was not capable of taking care of, nor of even dressing, herself.” “Had fits when she was a little girl; was without her mind before she was able to talk; never had her mind like other people.” The mother stated that she had “not been capable of taking care of herself; been idiotic ever since her birth.” The testimony tends to show, that, on the morning of the 4th of September, 1869 (the time charged in the indictment), the prosecutrix was sent by her mother to see if there were hogs in the corn. The field is on the north side of the public high
As the daughter failed to return as expected, the mother called her, receiving no answer; and after walking from the house still further, again called; heard a low voice, as if smothered; advanced still again and heard talking in the corn; and soon found the daughter and defendant; the defendant upon the person of the prosecutrix ; told him to get away; the girl reached out her hand, and the mother raised her up; he raised up and fastened his pants; the mother threatened him and he threatened in return. The daughter was found to be greatly frightened; her clothes torn, with blood upon them. She seemed much injured and to “flinch when touched by the mother with her hand.” She also seemed sore and lame, and this continued some days.
There was also evidence tending to show that the corn was knocked down near the spot, and there is no dispute that defendant was in a position to have carnal knowedge of the prosecutrix, either with or against her consent. In speaking of the transaction himself, he stated that he was passing the road, and seeing the girl, stopped to talk with her; that he heard that she was of easy virtue; talked with her a little bit; got over the fence and backed her up in the corn, or shoved her down; had intercourse with her; that the mother came up, took her away, and that he cursed and threatened her. This being the testimony in substance, the prisoner claims, first, that there was no sufficient evidence of force, or that the intercourse, if any,
That the law as to what would constitute the crime of rape, as to what the State should prove, etc. (leaving out of view the female’s mental condition), was correctly stated to the jury in the several very clear, and, we think quite explicit instructions, is scarcely denied. Thus, the offense was defined in the very language of the statute, and hence that defendant must have ravished and carnally known the prosecutrix by force and against her will (Eev. § 4204), but that proof of actual penetration was sufficient, etc. (§ 4101).
The jury were also told that, though satisfied of the carnal knowledge, yet if not satisfied, beyond a reasonable doubt, that it was by force and against her will, they should acquit; that not every act of sexual intercourse would constitute the crime charged, the gist of the offense being the injury to the female by compelling her to submit against her will; and that, though the prosecutrix was of weak mind, this should not be held against the prisoner unless the State has shown that he knew of her mental condition. These and other instructions, touching the points now under consideration, were given, presenting, as already suggested, very fully and in detail the law and the duty of the jury in such cases. Indeed, the defendant’s instruction were all given as asked, and thus far, if there was any omission, it was no fault of the court; and this is especially so when those thus given , are taken in connection with the instructions in chief. But there was no omission, and, thus far, no ground of complaint. Can we, then, interfere with the verdict as being unsustained by the evidence ? We have examined and re-examined this record with the greatest care, have read and reread this testimony, and though strongly inclined'at first to
1. If you find that the prosecutrix was not of sound mind, had been idiotic from her birth, and was actually incapable of assenting of dissenting, and further find that the defendant made an assault upon her, forced her back into the corn and threw her down, tore her clothes, abused her person, and actually had sexual intercourse with her, and nothing in her conduct even indicating an animal
2. Mere submission will not necessarily involve consent, and though she may have submitted without resistance ; yet, if from the circumstances, her condition of mind, and the defendant’s admissions, you find she did not consent, the other ingredients being found, you should convict.
3. It is proper to consider, in determining whether there was force, the strength of her mind and its ability to resist; whether her mouth was covered ; whether she held out her hands as if for help to her mother ; whether he was of sufficient strength to overcome her in her condition of mind and body, etc.
4. Though you find her of weak mind, yet if she was capable of exercising her will sufficiently to control her personal actions, and if she acquiesced in the connection, the defendant would not be guilty.
5. He is not guilty if the carnal knowledge was with her consent and not against her will, though she was of weak mind.
6. Not every act of sexual intercourse with a woman of unsound mind will constitute rape. To be such, it must have been against her will or desire. If not satisfied that it was against her will, you should acquit.' So too, if she voluntarily submitted.
The fifth and sixth were given at defendant’s instance, the others in chief, and on the motion of the State.
The objections urged relate more particularly to a claimed conflict between the fifth and sixth instructions, and the language, “ if you find she did not consent, the other ingredients being foundf in the second, as above numbered. Properly construed, and when taken in connection with the other instructions, the conflict claimed is not apparent. For while the law was given that not
To sustain the objection here presented, counsel rely largely upon The People v. Cresswell, 5 A. L. R. 339; 13 Mich. 427. ¥e have examined the very able opinion of Cooley, J., in that case, and fail to find any thing in it in conflict with this instruction. For there all claim that the act was by force and against her will was expressly negatived by the undisputed facts, and the real question was, “ whether that is by force and against the will where the woman assented to and desired its commission, but without possessing at the time the mental capacity which would render her responsible for her own conductit being true that “ the will was active, though perverted, and all idea of force or want of willingness distinctly disproved.” The ease before us falls rather within another class, where it is held, as we believe, without dissent, that if the man, knowing the woman to be insane (or idiotic), should take advantage of that fact to have knowledge-of her person, while her mental powers were so impaired that she was unconscious of the nature of the act, or was not a willing participator, the act would be rape, though distinct proof of opposition might be wanting. And this would be the more incontrovertibly true if there was nothing in her conduct indicating even an animal desire for the connection. If this proposition be true, the case before us is of easy solution, for the first instruction in effect tells the jury that if there was cunimal desire on her part, they could not find guilt, though she had not sufficient mental capacity to give or withhold an “ intelligent assent.” Judge Cooley, in the case cited, says, that though the very definition of the offense implies the existence of a will which has opposed the carnal knowledge, no violence is done by holding that the physical force necessary to effectuate the purpose,
The language under consideration, when taken in connection with the facts, as claimed by the State, is really nothing different from the proposition that if the act was, in legal contemplation, against her will, the other ingredients being proven, defendant was guilty. For it must be remembered that there was evidence of force. At least, it is not a case of sexual intercourse without any fact tending to show violence. The mere submission did not necessarily mean consent. This was held in Gross's Case, supra; and of its correctness there is no doubt. And, though she submitted without resistance, there still might be guilt, for she might, by reason of her mental condition and the circumstances surrounding, be incapable of offering opposition. The force necessary and the resis
Affirmed.
Dissenting Opinion
(dissenting). — I should have no difficulty in concurring in the foregoing opinion, and in the conclusion reached, were it not for the second instruction, which is as follows: “ 2d. Mere submission will not necessarily involve consent; and though she may have submitted, without resistance, yet, if from the circumstances, her condition of mind, and the defendant’s admissions, you find she did not consent, the other ingredients being found, you should convict.” Now our statute defining rape provides, that, “ if any person ravish or carnally know any female of the age of ten years or more, by force and against her will,” he shall be punished, etc. The statute, it will be observed, requires that it shall be “by force and against her will” The instruction simply requires the jury to “ find that she did not consent.” There is, it seems to me, a manifest difference between non-consent and against the will. There are very many things done without my consent, which are not, nevertheless, against my will. A female may passively submit to inter
I think that, in the case of an idiot or lunatic female, the jury may take into consideration her condition of mind, the circumstances of the connection, the indications of force and resistance, etc., to determine the fact that the act was against her will; but othey must find that it was against her will, and not barely that she did not consent. The statute requires that the carnal knowledge to constitute rape must be by force and against her will, and it matters not what may be the condition of the body or mind of the female, nothing less than this will constitute rape; although much less and different evidence might satisfy the jury that the act was against the will of a female of weak mind, than if she was of a strong and vigorous mind. As this second instruction was a leading one, covering the whole case, and would justify or authorize the verdict of guilty as found by the jury, without a finding by them that the act was against the will of the prosecutrix, I think the defendant ought to have a new trial; but my associates think otherwise, and the order must, therefore, be made that the judgment appealed from shall stand affirmed.