State v. Carnagy

Decision Date20 October 1898
Citation106 Iowa 483,76 N.W. 805
PartiesSTATE v. CARNAGY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

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.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;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 accused accorded that fair and impartial hearing guarantied by the constitution. The accused is entitled to a trial in a court duly constituted, and, if the presiding judge abandons the trial or relinquishes control of the proceedings, he has ground for complaint. Turbeville v. State, 56 Miss. 793;O'Brien v. People, 17 Colo. 561, 31 Pac. 230;Palin v. State, 38 Neb. 862, 57 N. W. 743; State v. Smith, 49 Conn. 376; Thompson v. People, 144 Ill. 378, 32 N. E. 968;State v. Beuerman (Kan. Sup.) 53 Pac. 874; Hayes v. State, 58 Ga. 35; Meredith v. People, 84 Ill. 479.

Our attention has not been called to any authority to the contrary. In State v. Portter (Iowa) 75 N. W. 519, neither party claimed any prejudice because of the absence of the judge, who in fact heard all that was said. In Baxter v. Ray, 62 Iowa, 336, 17 N. W. 576, there was no claim of prejudice, and none appeared. The reversal of Hall v. Wolff, 61 Iowa, 562, 16 N. W. 710, was because of misconduct of counsel in argument. The withdrawal of the judge there approved is by consent of parties in a civil case. In State v. Griffin, 79 Iowa, 570, 44 N. W. 813, misconduct of the counsel, not absence of the judge, was held to be without prejudice. Undoubtedly, error of the judge in temporarily relinquishing control of the proceedings in the trial of a civil cause may be cured by an affirmative showing that no prejudice resulted. Whether this may be done in a criminal action, the record in this case does not permit us to determine, as no showing whatever was attempted. See, however, the authorities cited. In any event, the better practice requires the visible presence of the presiding judge, and that he be within hearing every moment during the actual progress of trials involving the life or the liberty of those accused of crime.

5. The defendant requested the court to give the jury this instruction, and complains of the refusal to do so: “You are instructed that the fact that the defendant has not been called as a witness to testify in this case cannot be considered by you for any purpose, and you are instructed that you will not, in your deliberation, consider the fact of his not so testifying for any purpose in arriving at your verdict.” Section 5484 of the Code provides that, “should a defendant not elect to become a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state during the trial refer to the fact that the defendant did not testify in his own behalf; and should they do so, such attorney or attorneys will be guilty of a misdemeanor, and defendant for that cause alone be entitled to a new trial.” Whether giving such an instruction would have been beneficial to the defendant, we shall not undertake to determine. It is urged that, where nothing has occurred during the trial to direct the attention of the jury to the defendant's failure to testify, such an instruction might emphasize that fact, and be treated as an intimation of the effect on the court's mind of an omission to explain any criminating circumstances. See Ruloff v. People, 45 N. Y. 213;Baker v. People, 105 Ill. 452. But the jurors may have noted such omission without suggestion from the court, and given it weight. It was said in State v. Weems (Iowa) 65 N. W. 394, where a similar instruction was given without request: “The instructionwas in the interest of the defendant, and was induced, likely, by an apprehension that the jury might of its own motion consider the fact that the defendant did not take the witness stand to testify, and draw improper inferences therefrom. Certainly, the instruction could have done...

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    ...(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,......
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