State v. Butler

• Decision Date: 12 November 1912
• Citation: 138 N.W. 383,157 Iowa 163
• Parties: STATE OF IOWA v. FRED BUTLER, Appellant
• Court: Iowa Supreme Court

138 N.W. 383

157 Iowa 163

STATE OF IOWA v. FRED BUTLER, Appellant

Supreme Court of Iowa, Des Moines

November 12, 1912

Appeal from Webster District Court.--HON. C. G. LEE, Judge.

THE defendant, having been convicted of the crime of rape appeals.

Affirmed.

Frank Maher, M. M. Joyce, and Kelleher & O'Connor, for appellant.

George Cosson, Attorney General, John Fletcher, Assistant Attorney General, and B. B. Burnquist, County Attorney, for the State.

OPINION

LADD, J.

I.

The indictment charged that defendant, on or about September 21 1910, "did wilfully, feloniously, and unlawfully assault one Vera Butler, and did then and there carnally know and abuse the said Vera Butler, she being then and there a female child under the age of fifteen years." The court advised the jury that included in the offense charged was that of assault with intent to commit rape, and also that of unlawful assault, but did not mention assault and battery, nor submit whether he was guilty thereof to the jury. Appellant argues that this was error, insisting that this offense was included in the allegations of the indictment and sustained by the proof. It will be observed however, that the use of force and violence in the perpetration of the offense was not averred, and, even though the evidence may have disclosed the exertion of some force, as assault and battery was not included in the charge against the accused, there was no issue as to his guilt thereof, and for this reason it was not error to omit submitting the same to the jury. State v. Miller, 124 Iowa 429, 100 N.W. 334; State v. Johnson, 133 Iowa 38, 110 N.W. 170.

II. Section 5377 of the Code declares that, "where there is a reasonable doubt of the degree of the offense of which defendant is proven guilty, he shall be convicted of the lower degree only," and with reference thereto the court instructed that "included in the charge of rape are the following lesser offenses, which are stated in the order of their gravity, as follows: (1) Assault with intent to commit rape; and (2) an unlawful assault. It is the law that where a person is charged with a crime, which charge includes offenses of a lesser degree, the jury shall find the defendant guilty of the highest offense charged of which the evidence proves him guilty beyond a reasonable doubt, if it does so prove him guilty of any such offense." The criticism of this instruction is that "it does not tell the jury that where there is a reasonable doubt as to the degree of the offense the conviction should be for the lesser." It is a little difficult to understand how the jury might exclude all reasonable doubt in convicting of a higher offense, without saying that no such doubt existed as to the degree. The court might well have indicated the law by quoting this statute; or more pointedly have expressed the precise rule on the subject. But other portions of the charge were such as to obviate any possible misconception of what was intended. Thus, in the fourth instruction, the elements constituting the crime of rape were stated, and the jury told that, unless each and all of these had been proven beyond reasonable doubt, the accused should not be convicted of having committed that crime. This instruction was followed by another saying that, in event of conviction of rape, the lesser offenses are not to be considered; but, if not guilty thereof, the jury should proceed to inquire whether he was guilty of an assault with intent to commit rape, and that, unless found beyond reasonable doubt to have so assaulted prosecutrix, he should not be convicted of this offense. In the seventh instruction, the necessity of proving penetration beyond reasonable doubt, to constitute rape, was pointed out, and, in...