State v. Anderson

• Decision Date: 27 October 1904
• Citation: 101 N.W. 201,125 Iowa 501
• Parties: STATE v. ANDERSON.
• Court: Iowa Supreme Court

125 Iowa 501

101 N.W. 201

STATE

v.ANDERSON.

Supreme Court of Iowa.

Oct. 27, 1904.

Appeal from District Court, Wapello County; Robert Sloan, Judge.

Defendant was convicted of rape, and sentenced to imprisonment in the penitentiary for 16 years, and appeals. Affirmed.Jaques & Jaques and N. E. Kendall, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

McCLAIN, J.

1. The indictment charged that the defendant committed the crime with force and arms in and upon a female child 12 years of age. An objection raised by counsel for defendant in various ways is that, where it is alleged in the indictment that the act was committed with force and arms, it must be so proven, although the female is alleged and shown to have been under the age of consent, so that no allegation as to force and arms or want of consent is necessary. In support of this contention counsel has cited many decisions of this and other courts supporting the rule that, although the indictment is unnecessarily particular in a matter of description, such matter of description must be proven in all its particularity, unless the entire allegation in which the particular description is contained can be rejected as surplusage. Such a rule has frequently been applied as to descriptive allegations with reference to place and person, but no case is called to our attention in which it has been applied so as to require proof of the formal allegation that an act has been committed with force and arms, when that is not an essential element of the crime charged. Suppose that the offense for which it was sought to convict the defendant was that of assault with intent to commit murder by the administration of poison, and that act was alleged to have been done with force and arms, could it be reasonably contended that the charge could not be supported by proof of the administration of poison without the knowledge of the party alleged to have been assaulted. In State v. Goode, 68 Iowa, 593, 27 N. W. 772, it was held that an averment in the in dictment describing the defendant as of a particular age was immaterial, and might be disregarded. But there is direct authority in support of the proposition that the allegation “with force and arms” is wholly immaterial in an indictment alleging rape or assault with intent to commit rape upon a female under the age of consent. State v. Erickson, 45 Wis. 86. That the defendant may be convicted of rape under an indictment charging carnal connection with a female under the age of consent, although the indictment also alleges the act to have been “with force and arms,” so that there might have been a conviction although the female were over the age of consent, is not too well settled in this state to warrant a reargument of the question. See State v. Scroggs (Iowa) 96 N. W. 723.

2. When one Everett Rowe was called as a witness for the prosecution, counsel for defendant objected that he was not a witness examined before the grand jury, and that the notice served by the prosecution of the intent to use him as a witness incorrectly gave his name as “Rome.” The objection was overruled, and the witness was allowed to testify. It is contended that this was error, under the provisions of Code, § 5373, which provides that “the county attorney, in offering the evidence in support of the indictment, * * * shall not be permitted to introduce any witness who was not examined before the committing magistrate or the grand jury, and the minutes...