State v. Brooks

• Decision Date: 21 November 1917
• Docket Number: No. 31570.,31570.
• Citation: 181 Iowa 874,165 N.W. 194
• Parties: STATE v. BROOKS.
• Court: Iowa Supreme Court

181 Iowa 874

165 N.W. 194

STATE

v.BROOKS.

No. 31570.

Supreme Court of Iowa.

Nov. 21, 1917.

Appeal from District Court, Wapello County; Seneca Cornell, Judge.

The defendant appeals from a conviction of statutory rape. Reversed and remanded.Jaques & Jaques, of Ottumwa, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

SALINGER, J.

[1] 1. 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 3705a, Supp. 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, 149 N. W. 79;Thomas v. Railway, 169 Iowa, 337, 151 N. W. 387;Parkhill v. Storage Co., 169 Iowa, 468, 151 N. W. 506;State v. Cooper, 169 Iowa, 579, 151 N. W. 835;American Fruit Co. v. Vinegar Works, 172 Iowa, 683, 154 N. W. 1031;Hanson v. Anamosa, 158 N. W. 591;Sawyer v. Hawthorne, 158 N. W. 666. 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. 68.Rule v. Carey, 159 N. W. 699, does not help appellant 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 to 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 required 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.

[2] 2. This brings to us whether it was error to exclude simple assault from consideration. If there be no special reason that justifies its 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 this is an included offense, 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, 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.

[3][4] 2b. 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: (1) Where 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, 687, 77 N. W. 461;State v. Harrison, 167 Iowa, 334, 149 N. W. 452;State v. Marselle, 43 Wash. 273, 86 Pac. 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, 47, 116 N. W. 1058;State v. Novak, 151 Iowa, 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, 20, 91 N. W. 762. (5) If there is no evidence of an included offense charged. State v. Trusty, 118 Iowa, 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, 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: (1) If 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, 32 Am. Rep. 134;State v. Trusty, 118 Iowa, 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, 244;State v. Woodworth, 168 Iowa, 263, 150 N. W. 25;State v. Perkins, 171 Iowa, 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.

[5] 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 and 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 whether to submit the major offense, and that it may submit the same unless “the record contains no evidence having a tendency to favor the higher offense,” even though the evidence as finally put in will not sustain a conviction of the higher offense. Though there is some confusion in the cases we think the right rule is: Since a verdict may not be directed against the defendant, and therefore an exclusion of an included offense is in a sense a direction for him, it is proper to rule that defendant shall not be put on trial for an included...