State v. Enright

• Decision Date: 09 May 1894
• Citation: 58 N.W. 901,90 Iowa 520
• Parties: STATE OF IOWA v. PATRICK ENRIGHT, Appellant
• Court: Iowa Supreme Court

58 N.W. 901

90 Iowa 520

STATE OF IOWA v. PATRICK ENRIGHT, Appellant

Supreme Court of Iowa, Des Moines

May 9, 1894

Appeal from Howard District Court.--HON. W. A. HOYT, Judge.

THE defendant was convicted in the court below of an assault with intent to commit a rape, and he appeals.

Affirmed.

John McCook and Springer & Clary for appellant.

John Y Stone, Attorney General, and Thos. A. Cheshire for the state.

OPINION

ROTHROCK, J.

I.

The charging part of the indictment is in these words: "For that on or about the fourth day of October, A. D. 1891, at and within the county of Howard and state of Iowa said defendant, Patrick Enright, did willfully, unlawfully, and feloniously ravish and carnally know one Martha Curran, then and there being, the said Martha Curran being then and there a girl of the age of fourteen years, and naturally imbecile and weak in mind, and deficient in understanding, to such an extent that she did not know or comprehend the nature of the act, and naturally of such imbecility of mind and weakness of body as to prevent her making effectual resistance to said defendant and his unlawful act." The indictment is founded upon section 3863 of the Code, which is as follows: "If any person unlawfully have carnal knowledge of any female by administering to her any substance, or by any other means producing such stupor or imbecility of mind or weakness of body as to prevent effectual resistance, or have such carnal knowledge of an idiot or female naturally of such imbecility of mind or weakness of body as to prevent effectual resistance, he shall, upon conviction, be punished as provided in the section relating to ravishment." It is urged that the indictment is fatally defective because it is an attempt to charge the crime of rape, and does not contain the essential averment that the criminal intercourse was consummated "with force and against the will." It will be observed that the crime charged is set out in the indictment in nearly the exact language of the section of the statute above quoted. That section is supplementary to section 3861, which defines the crime of rape. The punishment is the same, but the crime defined in section 3863 is for the protection of a class of females, who, by reason of mental or bodily infirmity, are incapable of making the resistance required to protect themselves against the force of the ravisher. There is no question in our minds that the indictment is in all respects sufficient.

II. It appears from the evidence that Martha Curran was delivered of a child on the twenty-fourth of April, 1892. According to the usual period of gestation, the child was begotten in the month of July, 1891, when she was but little past fourteen years of age. It is averred in the indictment that the crime charged was committed on or about October 4, 1891, and there was evidence to the effect that the defendant was at the home of the complaining witness on that day. But it does not appear that he then had sexual intercourse with her. There is no evidence tending to prove that fact. It does appear from the testimony of Martha Curran that the defendant had sexual intercourse with her some time in the summer of 1891. Counsel for the defendant insists that the court erred in refusing to compel the state to elect upon which one of the acts of the defendant a conviction would be claimed. No case was made in the evidence requiring such an election. The only evidence of a criminal act was directed to a period before the month of October, 1891. It is scarcely...