State v. Brooks
| Decision Date | 21 November 1917 |
| Docket Number | 31570 |
| Citation | 165 N.W. 194,181 Iowa 874 |
| Parties | STATE OF IOWA, Appellee, v. OLIVER BROOKS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--SENECA CORNELL, Judge.
THE defendant appeals from a conviction of assault with intent to commit statutory rape.--Reversed and remanded.
Reversed and remanded.
Jaques & Jaques, for appellant.
H. M Havner, Attorney General, and H. H. Carter, Assistant Attorney General, for appellee.
I.
The court charged affirmatively that the jury was limited to considering the charge of rape, and of assault with intent to commit it, and submitted forms of verdict covering these and acquittal only. Complaint of this charge was made by definite exceptions asserting that assault and battery and simple assault should also be submitted. The State raises the preliminary question whether this may now be complained of, in the absence of requested instructions covering the point specifically. So far as simple assault is concerned, there is no such question, because Instruction 10, offered and refused, did ask that assault be submitted. As to assault and battery, the complaint was made by definite exceptions to an instruction which excluded that offense, but made in no other way. We have, then, to determine whether a complaint that assault and battery should have been charged upon is waived because there was no request that it be submitted. In quite a number of our decisions made since the statute providing for advance exceptions to instructions was enacted (Section 3705-a, Code Supplement, 1913); we have held by very clear implication that complaints of instructions may be made on appeal though no requests cover the point, if the point is specifically made by exceptions duly taken. See State v. Nott, 168 Iowa 617, at 620, 149 N.W. 79; Thomas v. Illinois Central R. Co., 169 Iowa 337, 151 N.W. 387; Parkhill v. Bekin's Storage Co., 169 Iowa 455, at 468, 151 N.W. 506; State v. Cooper, 169 Iowa 571, at 579, 151 N.W. 835; American Fruit Co. v. Davenport Vinegar Works, 172 Iowa 683, 154 N.W. 1031; Hanson v. City of Anamosa, 177 Iowa 101, 158 N.W. 591; Sawyer v. Hawthorne, 178 Iowa 407, 158 N.W. 665. But the record in these cases does not disclose whether the error was a misstatement of law or merely a failure to charge all that might properly have been charged. Even before the passage of this statute, we held that no request was necessary if the charge given is a misstatement of the law. State v. Pennell, 56 Iowa 29, 8 N.W. 686. In re Estate of Rule (Rule v. Carey), 178 Iowa 184, 159 N.W. 699, does not help appellant here unless the instruction here given amounts to a misstatement, because it appears that the complaint of the instruction was that it was not justified by the evidence. However, in State v. Fisher, 172 Iowa 462, 154 N.W. 587, the complaint was of a failure to charge, and we declined review on the express ground that specific objections covering the very point--such as are required by the statute--were not made. And the case states the rationale of the matter by putting it on the ground that complaints may not be raised for the first time on appeal. We incline to think that charging a jury, in effect, that it must convict of no less than a stated offense, is, if error at all, a misstatement of law. Be that as it may, still said statute requires that the judge shall, before he reads his charge to the jury, present the instructions to counsel; provides they shall have a reasonable time to examine same; must make all objections or exceptions thereto before the instructions are read, and point out the grounds thereof specifically and with reasonable exactness; and that no objections that do not thus point out specifically the exact grounds thereof shall be thereafter considered. It is difficult to understand why this statute was enacted if, despite it, errors of omission in instructions may not be complained of unless a request for an instruction covers the omission. The making such request is but an effort to keep the trial court from making an error which might require reversal, by inducing it to refrain from committing such error. The statute, if it does anything, provides a method for avoiding error by pointing out that, in regard specified, what is proposed to be charged is error. If the failure to make a formal request for instructions is fatal to review, it would seem the statute accomplished nothing, except that where, before, it was necessary to aid the trial court by one method, it is now necessary to use that method and also the statute method--the effect of using both being to call attention to the same error twice, and by different methods which accomplish just the one thing, i. e., to advise the court of a claim that the charge proposed to be given is erroneous. We think that, since the passage of said statute, any complaint of instructions can be made here if the same complaint was definitely made below, either by a request to charge or by objections to the charge.
II. This brings to us whether it was error to exclude assault and battery and simple assault from consideration. If there be no special reason that justifies their exclusion in the particular case before us, we are constrained to say the exclusion was erroneous, because all authorities agree that, on a charge of rape, these are included offenses, and that all included offenses should ordinarily be submitted. No one will question this in cases where the one assaulted is above the age of consent. The same is ordinarily true of assault when she is below that age. State v. Vinsant, 49 Iowa 241, 243; State v. Desmond, 109 Iowa 72, 80 N.W. 214; State v. Blackburn, 136 Iowa 743, 114 N.W. 531; State v. Butler, 157 Iowa 163, 138 N.W. 383; State v. Hutchinson, 95 Iowa 566, 64 N.W. 610; State v. Trusty, 118 Iowa 498, 92 N.W. 677; State v. Egbert, 125 Iowa 443, 101 N.W. 191. As to assault and battery, the same is held by the strongest of implication in State v. Steffens, 116 Iowa 227, 89 N.W. 974. In State v. King, 117 Iowa 484, 91 N.W. 768, there is added that assault and battery should be submitted unless it appears that a prosecutrix under the age of consent consented. But, the indictment covering the included offenses, it is still required that the evidence justify their being submitted.
2-b
There is no question as to the general rule. A multitude of decisions hold that included offenses need not be submitted when the court may hold, as matter of law, that, if any wrong was done, the highest offense charged was committed. As applied to the subject in hand, it has been held that included offenses need not be submitted where (1) the evidence "shows beyond question" that defendant was guilty of the major offense, if guilty at all (State v. Beabout, 100 Iowa 155, 69 N.W. 429); (2) where the evidence so clearly shows the major offense was committed as that no other conclusion can be reached on the evidence (State v. Sherman, 106 Iowa 684, at 687, 77 N.W. 461, State v. Harrison, 167 Iowa 334, 149 N.W. 452, State v. Marselle, [Wash.] 86 P. 586, at 587); (3) if there be no evidence on which the finding of a lower offense may properly rest, and the jury could not convict of such lower offense on the evidence (State v. Ralston, 139 Iowa 44, at 47, 116 N.W. 1058, State v. Novak, 151 Iowa 536, 540, 132 N.W. 26); (4) if there be no room to claim that assault and battery should be submitted (State v. Snider, 119 Iowa 15, at 20, 91 N.W. 762); (5) if there is no evidence of an included offense charged, as construed in State v. Trusty, 118 Iowa 498, at 500, 92 N.W. 677; (6) if there be "not the slightest evidence" of opposition by an infant, and she herself testifies to full consent (State v. Jones, 145 Iowa 176, 123 N.W. 960); (7) if the evidence of consent is conclusive, and there is no evidence of any offense below attempt to rape (State v. King, 117 Iowa 484, at 492, 91 N.W. 768). State v. McDevitt, 69 Iowa 549, 29 N.W. 459, holds that, mere pursuit being shown in an attempt to commit rape, assault and battery should not be submitted. On the other hand, included offenses should be submitted if (1) there is any evidence of their commission; (2) if, under the evidence, "the jury might believe the defendant guilty" thereof (State v. Mitchell, 68 Iowa 116, 26 N.W. 44, State v. Atherton, 50 Iowa 189, State v. Trusty, 118 Iowa 498, at 500, 92 N.W. 677); (3) if there be some evidence from which a jury may believe the included offense only was committed (State v. Vinsant, 49 Iowa 241, at 244, State v. Woodworth, 168 Iowa 263, 150 N.W. 25, State v. Perkins, 171 Iowa 1, at 2, 153 N.W. 146). In State v. Egbert, 125 Iowa 443, 101 N.W. 191, the State insisted that, if the jury found the defendant guilty of anything, it must have been no less than assault with intent to commit rape, because the prosecutrix was under the age of consent. We answered that this was not so, because the jury might have found assault and battery, or assault to inflict great bodily injury, upon the testimony of the prosecutrix alone, though prevented from finding assault with intent to rape, because there was no corroboration.
It is said in State v. Cody, 94 Iowa 169, 62 N.W. 702 that an instruction which excludes lower degrees charged operates to take from the jury the right to convict of a lower degree, which has full support in the evidence, because the same evidence as conclusively warrants a conviction of the higher degree. The effect of State v. Sayles, 173 Iowa 374, 155 N.W. 837, is that, in the haste of the trial, and in view of the fact that error therein may be corrected later, the trial court does not have to nicely balance evidence in determining...
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