State v. Fernald

• Decision Date: 25 May 1893
• Parties: STATE v. FERNALD ET AL.
• Court: Iowa Supreme Court

88 Iowa 553

55 N.W. 534

STATE

v.FERNALD ET AL.

Supreme Court of Iowa.

May 25, 1893.

Appeal from district court, Washington county; A. R. Dewey, Judge.

Defendants were indicted and put on trial for the crime “of compelling a woman to be defiled against her will.” After the state rested, defendants moved to take the case from the jury, and that they be discharged, “for the reason that all the testimony on the part of the state does not constitute the crime charged in the indictment.” This motion was sustained, and the state appeals.John Y. Stone, Atty. Gen., C. J. Wilson, Co. Atty., and H. Scofield, for the State.

H. M. Eicher, J. F. Henderson, and G. A. Ewing, for appellees.

GIVEN, J.

1. The question presented is whether the court erred in sustaining defendants' motion. To determine this we must first inquire what the charge is, and then whether there is evidence to support it. The indictment accuses the defendants “of the crime of compelling a woman to be defiled against her will,” and charges the crime to have been committed as follows: “The said P. A. Fernald and A. W. Brown, on or about the 24th day of July, in the year of our Lord one thousand eight hundred and ninety, in the county of Washington, and state of Iowa, did unlawfully and feloniously and against her will take one Etta Jones, she being a female woman, and by force, menace, and duress compel her, the said Etta Jones, to be defiled by him, the said A. W. Brown, and said P. A. Fernald; and A. W. Brown did then and there unlawfully and feloniously, by force and menace, threaten her, the said Etta Jones, that unless she would surrender up her person to the said A. W. Brown, and be by him defiled and carnally known, he, the said A. W. Brown, would circulate defamatory and scandalous reports, charges, and stories of and concerning her, the said Etta Jones, and by force, menace, and duress did put Etta Jones in fear, and against her will feloniously and unlawfully did then and there compel her, the said Etta Jones, to be defiled and carnally known.” Section 3862 of the Code is as follows: “If any person take any woman unlawfully and against her will, and by force, menace, or duress compel her to marry him or any other person, or to be defiled, he shall be fined,” etc. It is suggested on behalf of appellant that this indictment charges the crime of malicious threats to compel the person threatened to do an act against her will, under section 3871 of the Code. It is not charged that the threats were maliciously made, and for this and other reasons we conclude that the charge is not under section 3871, but is based upon section 3862. The evidence consists of admissions made by the defendants and the testimony of Etta Jones. It shows that for some time previous to the time it is alleged this offense was committed the defendant Fernald, an unmarried man, was keeping company with Etta Jones, then a young and inexperienced girl, and that their association led to criminal intimacy. Fernald boasted to Brown, a married man, of this criminal relation with Etta Jones, and, Brown expressing doubts as to the truth of his statements, it was agreed between them that Fernald would take Etta Jones to a certain place on a certain evening; that Brown should come upon them while they were in the act of sexual intercourse; that Fernald would pretend to attempt to buy his silence with money, and that Brown should insist as the only condition upon which he would not tell what he had seen that Etta Jones allow him to have sexual intercourse with her. The subsequent statements of the defendants not only show this agreement between them, but also that it was fully carried out by them. Etta Jones testified that when Brown came upon them he said “Hello;” that Fernald offered him $10 not to tell; that they two talked together twice, a short distance from her; that she did not hear what was said; that Fernald came, and told her that if she did not let Brown have sexual intercourse with her he would tell on her; that the second time Brown came with Fernald; that she cried, and said, “Oh, please don't;” that Fernald pushed her down, and pulled up her clothes, and Brown got on her, and had sexual intercourse with her, and that she believed...