State v. Austin

• Decision Date: 05 October 1899
• Citation: 80 N.W. 303,109 Iowa 118
• Parties: STATE OF IOWA v. CHARLES AUSTIN, Appellant
• Court: Iowa Supreme Court

80 N.W. 303

109 Iowa 118

STATE OF IOWA v. CHARLES AUSTIN, Appellant

Supreme Court of Iowa, Des Moines

October 5, 1899

Appeal from Polk District Court.--HON. C. A. BISHOP, Judge.

THE defendant was convicted of "an assault with intent to commit a felony," and, from a judgment which required that he be imprisoned in the state penitentiary at Ft Madison at hard labor for the term of five years, he appeals.

Reversed.

T. D Hastie for appellant.

Milton Remley, Attorney General, and Chas A. Van Vleck for the State.

OPINION

ROBINSON, C. J.

The indictment charges that "the said Charles Austin, on the 23d day of September, A. D. 1898, in the county of Polk and in the state of Iowa, did with force and violence, willfully and unlawfully, make an assault in and upon the person and body of one Lavina Diggs, then and there being, and he, the said Charles Austin, did then and there willfully unlawfully, and feloniously ravish and carnally know the said Lavina Diggs she, the said Lavina Diggs, being then and there an idiot and female human being naturally of such imbecility of mind and weakness of body as to prevent effectual resistance, and incapable of effectually resisting the said Charles Austin in the commission of the crime herein charged."

I. The defendant contends that the indictment is defective in that it charges two offenses,--the crime of rape, as defined by section 4756 of the Code, and the crime of unlawfully having carnal knowledge of an idiot or female naturally of such imbecility of mind and weakness of body as to prevent effectual resistance, as defined by section 4758 of the Code. We held in State v. Enright, 90 Iowa 520, 58 N.W. 901, that it was not necessary that the carnal knowledge should be had with force and against the will of the female in order to constitute the offense prescribed by section 4758; that the provision was designed for the protection of females who, by reason of mental or bodily infirmity, are incapable of making the resistance required to protect themselves against the force of the ravisher. The indictment under consideration charges that the defendant had carnal knowledge of an idiot and female being naturally of such imbecility of mind and weakness of body as to prevent effectual resistance, and that was an offense under section 4758 of the Code. It also charges that the carnal knowledge was accomplished with force and violence, but did not allege that it was against the will of the female, nor that she was under the age of 15 years; therefore an offense under section 4758 was not charged. The allegation of force and violence may be treated as surplusage. We conclude that the indictment is not vulnerable to the objection that it charges two distinct offenses.

II. The sixth paragraph of the charge to the jury contained the following: "You are therefore to inquire, first, whether at the time alleged the defendant did or did not carnally know or have sexual intercourse with the female Lavina Diggs. Some of the facts bearing upon this proposition are not disputed in the evidence, and may therefore be accepted by you as true. It is not disputed that the defendant was at the house in question at the time in question, and that he was there for a time alone with the said Lavina Diggs. It is not disputed that he was found lying on the floor of the bed room upon the person of the said Lavina Diggs, and that the lower limbs and the lower part of the body of the said Lavina Diggs were bare, the limbs extended, and that the defendant had his pants unbuttoned or unfastened down in front so that his shirt at least was exposed. * * *" It is true witnesses testified to the matters set out in the charge, and that no one in direct terms denied them; but they were not admitted by the defendant, and he offered testimony which tended to show that they were improbable. When found after the alleged offense was committed, he denied having been in the house where the girl was lying helpless. He was 65 years of age, and offered testimony which tended strongly to show that he was impotent and without sexual desires. There was conflict in some of the testimony for the state, and facts were shown which tended to discredit some of the witnesses. In view of these facts, the court erred in giving the portion...