State v. Carnagy

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLADD
Citation106 Iowa 483,76 N.W. 805
Decision Date20 October 1898
PartiesSTATE v. CARNAGY.

106 Iowa 483
76 N.W. 805

STATE
v.
CARNAGY.

Supreme Court of Iowa.

Oct. 20, 1898.


Given, J., dissenting.

Appeal from district court, Linn county; William G. Thompson, Judge.

The defendant, having been accused of the crime of rape, and convicted of an assault with intent to commit rape, appeals. Reversed.

[76 N.W. 805]

Giffen & Voris, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.


LADD, J.

The name of the child of 11 years upon whom the assault is claimed to have been made was, in fact, “Anna Grubb,” though alleged in the indictment as “Anna Brown.” She has always been known by the latter name, taking it from her stepfather. When these facts appeared in evidence, the defendant asked that, because of the variance between the names alleged and proven, her testimony be stricken from the record. This motion was properly overruled, as the defendant was in no way prejudiced by the defect in naming the person injured. Code, § 5286; State v. Carr, 43 Iowa, 418;State v. Cuningham, 21 Iowa, 433;State v. Emeigh, 18 Iowa, 122;State v. Flynn, 42 Iowa, 164;State v. Crawford, 66 Iowa, 318, 23 N. W. 684;State v. Fogerty (Iowa) 74 N. W. 754;State v. Bell, 65 N. C. 313;State v. Windahl (Iowa) 64 N. W. 420.

2. If there was no evidence of penetration, it may be conceded that the issue as to whether the defendant was guilty of rape ought not to have been submitted to the jury. See State v. Kyne, 86 Iowa, 616, 53 N. W. 420. The prosecution, however, was not bound to rely upon the testimony of the injured party alone, as penetration, like any other element of crime, may be established by circumstantial evidence. State v. Tarr, 28 Iowa, 397;State v. Watson, 81 Iowa, 389. 46 N. W. 868;Brauer v. State, 25 Wis. 413;Taylor v. State, 111 Ind. 279, 12 N. E. 400;State v. Depoister, 25 Pac. 1000, 21 Nev. 107. Proof of the slightest penetration is sufficient to sustain the charge of rape. See cases above cited, and also State v. Hargrave, 65 N. C. 466;People v. Crowley, 102 N. Y. 234, 6 N. E. 384;Rodgers v. State (Tex. App.) 17 S. W. 1077; Reg. v. Allen, 9 Car. & P. 31; State v. Le Blanc, 1 Tread. Const. 354. The evidence in this case tends to show that the defendant did his utmost to accomplish his wicked purpose, and, if he failed, it was because of the tender years of his victim. This, together with the evidence concerning the injured condition of her genital organs, was sufficient to warrant the submission of the issue to the jury.

3. It is insisted the jury ought to have been told, as requested by the defendant, that, in order to warrant his conviction, it must appear he intended to have the intercourse in spite of any resistance. In an instruction given, the jury was substantially so directed. Our statute makes it rape to carnally know and abuse any female child under the age of 15 years, without reference to whether she consent or refuse. Under that age she is incapable of giving her consent to such an act. If the defendant attempted to have sexual intercourse with this child, and failed, he was guilty of an assault with intent to commit rape, even though she made no resistance whatever, and he expected to accomplish his purpose without opposition. State v. Grossheim, 79 Iowa, 75, 44 N. W. 541;State v. Newton, 44 Iowa, 45. See, also, State v. Ruhle, 8 Iowa, 447;Fizell v. State, 25 Wis. 365;Com. v. Roosnell (Mass.) 8 N. E. 747;People v. McDonald, 9 Mich. 150;State v. Johnston, 76 N. C. 209; Stephen v. State, 11 Ga. 226; People v. Gordon (Cal.) 11 Pac. 762;Hays v. People, 1 Hill (N. Y.) 351;Territory v. Keyes (Dak.) 38 N. W. 440;Davis v. State, 47 N. W. 854, 31 Neb. 247;State v. Wheat, 63 Vt. 673, 22 S. E. 720;Murphy v. State, 120 Ind. 115, 22 N. E. 106;Glover v. Com., 86 Va. 382, 10 S. E. 420;

[76 N.W. 806]

McKinny v. State, 29 Fla. 565, 10 South. 732;State v. West, 39 Minn. 321, 40 N. W. 249;State v. Meinhart, 73 Mo. 562,In re Lloyd (Kan. Sup.) 33 Pac. 307; McClain, Cr. Law, § 464; Whart. Cr. Law, § 577. Contra, see Hardin v. State (Tex. Cr. App.) 46 S. W. 803;Smith v. State, 12 Ohio St. 466; State v. Pickett, 11 Nev. 255; Whitcher v. State, 2 Wash. St. 286, 26 Pac. 268; Reg. v. Read, 2 Car. & K. 957; Hardwick v. State, 6 Lea, 103.

4. During the opening address to the jury by the county attorney, counsel for the defendant interposed objections to the line of argument pursued. What this was does not appear, except from the objection which indicated that he was stating what he conceived to be the law applicable to the case. The judge was absent, and, upon his return, caused the following entry to be made: “The court, not being present, but out of the court room, could not hear the argument; and the court says he cannot pass on the objection, and will not do so, because the court did not hear a word of the objection or the argument, as he was absent from the court house.” There is no affirmative showing of prejudice, unless it be in the omission to rule on the objection made. But we think the absence of the judge from the court room, beyond the hearing of the proceedings, when not shown affirmatively to have been without prejudice, is in itself error, alone sufficient to warrant the reversal of a judgment. There can be no court without a judge, and his presence, as the presiding genius of the trial, is as essential at one time as another. The argument is an important part of the proceedings, during which the judge cannot properly absent himself. He should remain within hearing, that he may not even temporarily relinquish control of the proceedings and the conduct of the trial. This is necessary to enable him to intelligently review the proceedings on motion for new trial. So doing will not prevent him from changing his seat, or even being in an adjoining room, if not out of hearing of the proceedings, or from reading or writing or temporarily engaging in conversation, for he is not bound to listen to every word of the argument. But he at all times must be in readiness to assert authority in keeping the argument within legitimate limits, and to interpose whenever the conduct of officers of the court, jurors, or spectators may require. In all criminal prosecutions the law exacts a speedy and public trial, and all formalities should be scrupulously observed, that the public may know the majesty of the law is being upheld, and the...

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41 practice notes
  • Peri v. State, No. 81-2107
    • United States
    • Court of Appeal of Florida (US)
    • January 18, 1983
    ...(1922); Slaughter v. United States, 5 Ind.T. 234, 82 S.W. 732 (1904); Graves v. People, 32 Colo. 127, 75 P. 412 (1904); State v. Carnagy, 106 Iowa 483, 76 N.W. 805 (1898); State v. Beuerman, 59 Kan. 586, 53 P. 874 (1898); Ellerbe v. State, 75 Miss. 522, 22 So. 950 (1898); Smith v. Sherwood,......
  • Thomas v. State
    • United States
    • Supreme Court of Alabama
    • January 24, 1907
    ...v. Beuerman, 53 P. 874, 59 Kan. 586; Turbeville's Case, 56 Miss. 793; Tuttle v. People, 36 N.Y. 431; State v. Carnagy, 106 Iowa, 483, 76 N.W. 805. After careful consideration of the record, we have discovered no reversible error, and the judgment of conviction and sentence will be affirmed.......
  • Smith v. State, 7 Div. 266.
    • United States
    • Supreme Court of Alabama
    • January 31, 1935
    ...This is necessary to enable him to intelligently review the proceedings on motion for new trial.' State v. Carnagy, 106 Iowa, 483, 487, 76 N.W. 805." 16 C.J. p. 812, note [a] to § 2-61; Horne v. Rogers, 110 Ga. 362, 35 S.E. 715, 49 L. R. A. 176; 20 R. C. L. § 13, p. 229; State of North Dako......
  • State v. Sereg, No. 45546.
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1941
    ...court has so held. See State v. Hammer, 116 Iowa 284, 89 N.W. 1083;State v. Twine, 211 Iowa 450, 233 N.W. 476. [6] In State v. Carnagy, 106 Iowa 483, 76 N.W. 805, 806, the judge was absent from the court room for a time during the State's opening argument. His absence was apparently without......
  • Request a trial to view additional results
41 cases
  • Peri v. State, No. 81-2107
    • United States
    • Court of Appeal of Florida (US)
    • January 18, 1983
    ...(1922); Slaughter v. United States, 5 Ind.T. 234, 82 S.W. 732 (1904); Graves v. People, 32 Colo. 127, 75 P. 412 (1904); State v. Carnagy, 106 Iowa 483, 76 N.W. 805 (1898); State v. Beuerman, 59 Kan. 586, 53 P. 874 (1898); Ellerbe v. State, 75 Miss. 522, 22 So. 950 (1898); Smith v. Sherwood,......
  • Thomas v. State
    • United States
    • Supreme Court of Alabama
    • January 24, 1907
    ...v. Beuerman, 53 P. 874, 59 Kan. 586; Turbeville's Case, 56 Miss. 793; Tuttle v. People, 36 N.Y. 431; State v. Carnagy, 106 Iowa, 483, 76 N.W. 805. After careful consideration of the record, we have discovered no reversible error, and the judgment of conviction and sentence will be affirmed.......
  • Smith v. State, 7 Div. 266.
    • United States
    • Supreme Court of Alabama
    • January 31, 1935
    ...This is necessary to enable him to intelligently review the proceedings on motion for new trial.' State v. Carnagy, 106 Iowa, 483, 487, 76 N.W. 805." 16 C.J. p. 812, note [a] to § 2-61; Horne v. Rogers, 110 Ga. 362, 35 S.E. 715, 49 L. R. A. 176; 20 R. C. L. § 13, p. 229; State of North Dako......
  • State v. Sereg, No. 45546.
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1941
    ...court has so held. See State v. Hammer, 116 Iowa 284, 89 N.W. 1083;State v. Twine, 211 Iowa 450, 233 N.W. 476. [6] In State v. Carnagy, 106 Iowa 483, 76 N.W. 805, 806, the judge was absent from the court room for a time during the State's opening argument. His absence was apparently without......
  • Request a trial to view additional results

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