State v. Ellington

• Citation: 200 Iowa 636,204 N.W. 307
• Decision Date: 25 June 1925
• Docket Number: No. 36078.,36078.
• Parties: STATE v. ELLINGTON.
• Court: United States State Supreme Court of Iowa

200 Iowa 636

204 N.W. 307

STATE

v.ELLINGTON.

No. 36078.^a1

Supreme Court of Iowa.

June 25, 1925.

Appeal from District Court, Mahaska County; Chas. A. Dewey, Judge.

Indictment for assault with intent to commit statuory rape. The defendant appeals from the judgment based upon a conviction. Affirmed.

Superseding former opinion in 200 N. W. 494.Devitt & Eichhorn and McCoy & McCoy, all of Oskaloosa, for appellant.

Ben J. Gibson, Atty. Gen., and Maxwell A. O'Brien, Asst. Atty. Gen., for the State.

FAVILLE, C. J.

Appellant moved to dismiss the indictment on the ground that he was not brought to trial at the next regular term of the court after the indictment was found. From an agreed statement of facts it appears that appellant was indicted at the February, 1922, term of the district court of Mahaska county. The next succeeding term was the April, 1922, term, at which time it appears that on the convening of court, when the attorneys representing appellant were present, in open court, the presiding judge inquired of the county attorney if there was any one in jail, and was informed by the county attorney that there was not. He then inquired if defendants in criminal cases were at liberty on bonds, and was told that they were. He then inquired of the bar if there was any defendant insisting upon trial, and stated, if there was, he would call a jury; otherwise, no jury would be called for that term of court. No one indicating that any criminal case was ready for trial, the court announced that he would not call a jury for the April, 1922, term, and no criminal cases were assigned for said term, and at the next succeeding term, in October, 1922, appellant's case was called for trial, at which time he submitted a motion to dismiss the case, because it had not been brought up for trial at the next regular term succeeding the indictment.

[1] We have recently had occasion to discuss a somewhat similar situation in the case of State v. Rowley, 198 N. W. 37, and what we therein said is pertinent to the instant case. While it may be true that appellant was not required to insist upon a trial of the case at the April term, still, under the circumstances as disclosed here, the trial judge was endeavoring to ascertain the necessity of calling a jury for the trial of criminal cases, and the whole situation was known to counsel for appellant, who were in open court at the time. It cannot be said that under such circumstances counsel could remain silent and permit the cause to go over the term and no jury to be called, and that appellant could thereafter avail himself of the right to a dismissal of the case because it was not tried until the second term after the indictment. The court did not err in overruling the motion to dismiss on this ground.

[2] II. The charging part of the indictment was as follows:

“Did in and upon one Dorothy Sutherland, a female child under the age of 15 years, to wit, 12 years of age, unlawfully, willfully, and feloniously make an assault, with a felonious intent then and there to willfully, unlawfully, and feloniously ravish and carnally know and abuse the said Dorothy Sutherland by force and against her will, the said William Ellington being then and there over the age of 25 years, all contrary to law, and against the peace and dignity of the state of Iowa.”

Appellant contends that it was error on the part of the court to fail to instruct the jury on the offense of assault and battery; it being the contention of appellant that said offense is included in the offense of assault with intent to commit rape, as charged in the indictment. There is evidence to support a conviction of assault and battery. The question at this point is whether or not the indictment in its terms is such as to charge the offense to have been committed with force, and therefore make it incumbent upon the court to submit to the jury the included offense of assault and battery. Where the charge is assault with intent to rape, assault and battery need not be submitted, unless the indictment charges force. The question arises as to whether the indictment in the case at bar charges force, so that it was error on the part of the trial court not to submit the question of assault and battery to the jury.

In State v. McAvoy, 73 Iowa, 557, 35 N. W. 630, we said:

“To justify a conviction of assault and battery, then, on an indictment charging assault with intent to commit rape, it must be averred in the indictment that the attempt was accompanied by some actual violence to the person of the woman.”

In State v. Ockij, 165 Iowa, 237, 145 N. W. 486, we said:

“Furthermore, in rape cases it depends upon the form of the indictment, as well as upon the evidence, whether the instructions should cover lower included offenses.”

In State v. Desmond, 109 Iowa, 72, 80 N. W. 214, the indictment charged the offense in the identical form of the indictment in the instant case. We therein said:

“The indictment in this case does not charge that the assault alleged was accompanied by any force. Hence the crime of assault and battery was not alleged, and the district court erred in charging the jury that it might find the defendant guilty of that offense.”

In State v. Miller, 124 Iowa, 429, 100 N. W. 334, the indictment was in the same form as in the Desmond Case and in the case at bar, and we said:

“As will be noticed, the allegations here made distinctly charge an assault, but do not charge any actual physical violence or injury constituting a battery. Under an indictment in this form this court has held that the accused cannot be convicted of assault and battery.”

In State v. Woodworth, 168 Iowa, 263, 150 N. W. 25, we said:

“The indictment in this case is similar to that in State v. Desmond, 109 Iowa, 72, and it seems to be the rule in cases of this character that the crime of assault and battery is not necessarily included in an assault with intent to commit rape, and that, to justify a conviction of assault and battery on an indictment charging assault with intent to commit rape, it must be averred in the indictment that the attempt was accompanied by some actual violence to the person of the woman.”

See, also, State v. Johnson, 133 Iowa, 38, 110 N. W. 170.

The indictment in the instant case does not charge that the assault was with “force and violence,” nor does it charge that any physical violence was used. The allegation that the intent of the appellant was to ravish the prosecutrix “by force and against her will” is not an allegation that any force or violence was used. In State v. Brooks, 181 Iowa, 874, 165 N. W. 194,State v. Egbert, 125 Iowa, 443, 101 N. W. 191, and similar cases relied on by appellant, it appeared that the indictment charged that the act was done “by force,” not, as in the case at bar, that the intent was to accomplish the act by force. The cases are distinguishable from the case at bar. There is no charge in this indictment that appellant did anything more than make an assault with intent to accomplish the act by force. More than this is required to include a charge of assault and battery.

Appellant places great reliance upon State v. Powers, 181 Iowa, 452, 164 N. W. 856. The indictment in that case does not appear in the opinion. The appellant calls our attention to the original abstract, which discloses that it is in effect identical in form with the indictment in the case at bar. No reference is made to State v. Desmond, and other similar cases, in the opinion in the Powers Case. We are now satisfied that the holding in the Powers Case, to the effect that under the indictment in said case the included offense of assault and battery must be submitted, was erroneous, and the Powers Case, as to such pronouncement, is overruled.

[3] We are disposed to adhere to the rule laid down in the cases above cited, and, applying this rule to the indictment in the instant case, we hold that it was not sufficient to charge the included offense of assault and battery, and the court did not err in failing to submit said offense to the jury.

Our attention is called to the recent case of State v. Poston (Iowa) 203 N. W. 257. The language of the indictment in said case does not appear in the opinion. In any event, the court instructed the jury that the crimes of assault and battery and assault were included in the indictment in the case. No question was raised on the appeal as to this instruction. The defendant in said case claimed error...