State v. Blair, 39143.

• Decision Date: 12 February 1929
• Docket Number: No. 39143.,39143.
• Citation: 209 Iowa 229,223 N.W. 554
• Parties: STATE v. BLAIR.
• Court: Iowa Supreme Court

209 Iowa 229

223 N.W. 554

STATE

v.BLAIR.

No. 39143.

Supreme Court of Iowa.

Feb. 12, 1929.

Appeal from District Court, Carroll County; R. L. McCord, Judge.

County attorney's information for statutory rape. Conviction of assault with intent to commit rape. Defendant appeals. Affirmed.B. I. Salinger, of Carroll, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

MORLING, J.

The information charges: “That the said William Blair on or about the 28th day of May, A. D. 1927, in the county of Carroll and State of Iowa * * * did willfully, unlawfully and feloniously, carnally know and abuse one Eldora Struve, she being then and there a female child under the age of sixteen years, all against the peace and dignity of the State of Iowa and contrary to the statute in such case made and provided.”

The defendant's principal point is that the only evidence offered by the state on the subject is to the effect that a completed rape by actual penetration was accomplished; that such proof “disproves a charge of attempt to rape * * * disproves assault with intent to commit”; that the verdict of guilty of assault with intent acquits the defendant of the only offense of which there is any evidence, namely, completed rape; that the testimony, to the effect that sexual intercourse was consummated, was rejected by the jury as incredible, and that such rejection of the evidence left nothing upon which to base a conviction of assault with intent; that the verdict also discredits the corroboration. Defendant argues that the consummated crime and attempt to commit it are separate and distinct offenses; that a failure of consummation is an essential element of the offense of attempting to commit.

The argument and the cases cited are largely devoted to a discussion of common-law or statutory crime of “attempt” in other jurisdictions rather than the crime of assault with intent to commit defined by our statute, and of which the defendant was convicted. Whether there is a distinction between the common-law or statutory offense of attempt to commit rape in states where such attempt is made a crime and the offense of assault with intent to commit, as defined by our statute (sections 12966, 12968, Code 1927), we do not pause to consider (there being no common-law crimes in this state. State v. Banoch, 193 Iowa, 851, 186 N. W. 436). See Flower v. Continental Casualty Co., 140 Iowa, 510, 512, 118 N. W. 761;State v. Russell, 64 Kan. 798, 68 P. 615; Ex parte Stahlnaker, 93 Kan. 622, 144 P. 832. The prosecutrix was 11 years old. Defendant at the time charged was working for her father and sleeping in the father's home. There were two rooms on the second floor of the house. Defendant and a 10 year old brother of prosecutrix slept together in one of the rooms, and prosecutrix and a 7 year old sister slept together in the other. The testimony of prosecutrix is to the effect that at the time in question (as she says he had done previously) defendant came into her bed while her sister was in bed with her, fully accomplished the act alleged, causing her much pain “inside.” The sister testifies that defendant came into the bed, and she saw him get on top of the prosecutrix. The brother says he saw defendant in his underclothes get out of the bed in which they were both sleeping and go to the bed where the sisters were (on the night in question not having his underwear on), and that he heard the bed squeak. The testimony of a physician is to the effect that he examined both the prosecutrix and defendant; that defendant was normal; that the hymen of prosecuting witness was not broken, that there had been no vaginal, though he could not say but what there might have been some labial, penetration. The prosecuting witness also gave testimony that defendant, several months before the act for which defendant was tried, made an obscene proposal to her. The prosecutrix's testimony to this fact is said by defendant in argument to be without dispute. The evidence offered in behalf of defendant is confined to the testimony of witnesses to absence of bad reputation of defendant in respect to his relations with women, the physician's testimony above referred to, and testimony tending to impeach that of the prosecutrix's father. The legal competency of the state's witnesses is not denied.

Defendant leans heavily on State v. Mitchell, 54 Kan. 516, 38 P. 810, and State v. Barkley, 129 Iowa, 484, 105 N. W. 506, citing that case with approval. In State v. Mitchell, 54 Kan. 516, 38 P. 810, the court says, with respect to acquittal of the charge of rape and conviction of attempt: “In so doing they have found against the truth of her statements as to the principal fact testified to, while accepting her testimony as to minor matters. The explanation, and the only explanation, offered by the State for this result, is that the jury must have regarded her statements as to the manner in which the offense was consummated as incredible, and that they accepted so much as might have been true. * * * There is no other testimony in this case of any fact or circumstance, or of any act or declaration of the defendant, which is inconsistent with his entire innocence of any offense. The conviction, therefore, rests solely on the testimony of a witness whom the jury by their verdict have discredited and disbelieved as to the most important fact stated by her on the witness stand, and the fact concerning which, above all others, she could not possibly be mistaken. * * * Section 418 [chapter 31, Gen. St. 1889] * * * ‘No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person.’ * * * We have not such a statute. In that case the prosecuting witness was of the age of 18. She testified to the completed perpetration of the act while in a position in a buggy which the jury evidently found would make it impossible. The prosecuting witness here was 11 years old, inexperienced, and uninformed in such matters. Her testimony was corroborated. On the record here the jury might find that the defendant entertained toward the prosecuting witness lewd intentions, and therewith, in a state of partial or entire undress, got into the bed of the prosecuting witness with her, as testified to by the state's witnesses, and that his purpose was to have sexual intercourse with her. State v. Roby, 194 Iowa, 1032, 188 N. W. 709;State v. Sherman, 106 Iowa, 684, 77 N. W. 461;State v. Mueller, 202 Iowa, 1067, 208 N. W. 360.

[1][2][3] Defendant says in argument: “We cannot too often say that our position does not challenge decisions like State v. Barkley, 129 Iowa, at page 485, 105 N. W. 506, to the effect that when the proof of rape of necessity includes every included offense then one who has been guilty of one of the included offenses only may not ‘complain of the leniency or mistake of the court in his favor.’ We are not saying that when under the evidence defendant might rightfully have been convicted of rape that he can complain of a conviction for less than rape. * * * The question is whether there may be a conviction for assault to commit where the only evidence is to a completed act.” If a consummated rape was perpetrated, there was necessarily an assault with intent to commit rape. The jury might find that the completed offense of rape was not consummated, and still find sufficient evidence of the assault.

It is further urged there is no dispute on whether there was a consummated act; that the testimony does not dispute it; that it contradicts only the degree of penetration.

It is true that on the doctor's testimony there might have been sufficient penetration to constitute the crime of rape. The jury might well have found the defendant guilty of that crime. Nevertheless it remains true that there is sufficient evidence of the commission of the crime of assault with intent, and the case is within the rule that defendant may...