State v. Barkley

• Decision Date: 16 December 1905
• Parties: STATE v. BARKLEY.
• Court: Iowa Supreme Court

129 Iowa 484

105 N.W. 506

STATE

v.BARKLEY.

Supreme Court of Iowa.

Dec. 16, 1905.

Appeal from District Court, Sac County; H. M. Powers, Judge.

The defendant was convicted of an assault with intent to commit rape, and appeals. Reversed.W. A. Helsell, for appellant.

C. W. Mullen, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

LADD, J.

The accused was indicted for rape, and convicted of an assault with intent to commit rape. It is contended that under the evidence he should have been convicted of the higher offense or acquitted, and that for this reason his conviction of the lower offense is not sustained by the evidence. But proof of his guilt of rape of necessity included that of every included offense, and he is not in a situation to complain of the leniency or mistake of the jury in his favor. Pratt v. State, 51 Ark. 167, 10 S. W. 233;State v. Archer, 54 N. H. 465;Wilson v. State, 24 Conn. 57;Com. v. Cooper, 15 Mass. 187; State v. Morris (decided at the present term) 105 N. W. 213. But such a verdict may involve the credit to be given the witnesses for the state to such an extent as that it should not be allowed to stand. See State v. Mitchell, 54 Kan. 516, 38 Pac. 810, where prosecutrix's story was incredible, and the finding of the jury was held to indicate that it must have been rejected. Here the prosecutrix made no outcry, and was lying quietly beneath the accused when discovered by her mother, and the jury might have concluded that in seizing her leg when crawling under the fence he intended to commit rape, but that she finally yielded her consent to what was done afterwards (State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519;State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134); or the testimony of defendant that, though in position, penetration had not been undertaken when he was discovered, might have been accepted by the jury. In other words, a portion of prosecutrix's story might have been rejected as doubtful, and the remainder accepted as true. The evidence cannot be regarded as insufficient on this ground.

2. The court did not submit to the jury whether defendant was guilty of assault and battery. No doubt is entertained but that this offense was included in the indictment. Indeed, it was in the words of that so construed in State v. Kyne, 86 Iowa, 616, 53 N. W. 420. See, also, State v. Mitchell, 68 Iowa, 116, 26 N. W. 44;State v. McDonough, 104 Iowa, 6, 73 N. W. 357;State v. Wolf, 112 Iowa, 458, 84 N. W. 536;State v. Trusty, 118 Iowa, 498, 92 N. W. 677. The evidence was such that the defendant might have been found guilty of assault and battery, and State v. Welsh, 73 Iowa, 106, 34 N. W. 765, is an authority to the effect that, even though the issue as to his guilt of a simple assault was submitted, it was prejudicial error not to submit the question of his guilt of assault and battery also to the jury. See, also, State v. Desmond, 109 Iowa, 72, 80 N. W. 214.

3. The mother testified that prosecutrix, when defenda...