State v. Berry
| Decision Date | 11 May 1921 |
| Docket Number | No. 33396.,33396. |
| Parties | STATE v. BERRY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Iowa County; Chas. A. Dewey, Judge.
The defendant was convicted of the crime of rape, and from a judgment sentencing him to the penitentiary at Anamosa for an indeterminate term of 20 years, he appeals. Affirmed.Stapleton & Stapleton, of Marengo, for appellant.
B. J. Gibson, Atty. Gen., and B. J. Flick, Asst. Atty. Gen., for the State.
The indictment charged the defendant with the crime of rape committed upon a female child under the age of 15 years.
Sixteen errors in the rulings of the court, most of which relate to the instructions, are alleged by appellant. While it is urged that the evidence is insufficient to sustain defendant's conviction, a careful reading of the record, which consists of more than 100 pages of unabstracted typewritten transcript of evidence, satisfies us that the verdict was fully warranted thereby, and we shall not further discuss this question.
The sixth paragraph of the court's charge to the jury is as follows:
“To convict the defendant of the charge made in the indictment, the state must satisfy you, beyond a reasonable doubt, that in this county and state, and on or about the 12th day of October, 1916, the defendant did ravish and carnally know and abuse and have sexual intercourse with one Carrie Long; that she was then and there a female child under the age of 15 years. If the state has satisfied you of this beyond a reasonable doubt, then you should find the defendant guilty of rape as charged in the indictment; but if you do not so find, then you will acquit the defendant of the charge of rape.
If you find from the evidence, beyond a reasonable doubt, that the defendant made an assault upon the said Carrie Long, at the time and place aforesaid, with the intent then present in his mind to have sexual intercourse, but that in fact no sexual intercourse took place between them, then you should find the defendant guilty of assault with intent to commit rape; and, if you do not so find by the evidence beyond a reasonable doubt, then you will acquit the defendant of the grade of offense of assault with intent to commit rape.”
The exceptions to this instruction relate only to the second paragraph thereof. The criticism is that it omits the essential element of the crime of assault with intent to commit rape, that the state was bound to show that the prosecutrix was under the age of 15 years. Assault with intent to commit rape is an included offense under an indictment charging the commission of the higher crime upon a female child under the age of 15 years. State v. King, 117 Iowa, 484, 91 N. W. 768;State v. Carnagy, 106 Iowa, 483, 76 N. W. 805;State v. Christopher, 167 Iowa, 109, 149 N. W. 40.
It was not claimed by the state that the act of sexual intercourse between the defendant and the prosecutrix, which resulted in her pregnancy and the birth of a child, was accomplished by the use of such force as would warrant a conviction of the common-law offense. To justify a conviction of the included offense, it was necessary for the state to prove that the prosecutrix was under the age of 15 years, and, unless the instruction taken as a whole fairly construed so advised the jury, the conviction of the defendant should not be permitted to stand. It will be observed that the court, in the first paragraph of the instruction quoted, clearly and plainly stated to the jury that the burden rested upon the state to prove, beyond a reasonable doubt, among other essentials of the crime, that prosecutrix was, at the time of the acts complained of, under the age of 15 years. In the paragraph of the instruction against which the criticism is directed, the court, as already appears, used the following language:
“If you find from the evidence, beyond a reasonable doubt, that the defendant made an assault upon the said Carrie Long, at the time and place aforesaid, with the intent then present in his mind to have sexual intercourse,” but that he failed to consummate the act, then the defendant should be convicted of the lesser offense.
The reference to the prosecutrix named in the preceding paragraph of the instruction and to “the time and place aforesaid,” it seems to us, must necessarily have been understood by the jury to refer to and include the further statement therein, to the effect that it must further be established that the prosecutrix was under the age of 15 years. But a single act was mentioned in the evidence, and the jury could not have been reasonably misled by the failure of the court in defining the crime of assault with intent to commit...
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