State v. Gaston

• Decision Date: 14 December 1895
• Parties: STATE v. GASTON.
• Court: Iowa Supreme Court

96 Iowa 505

65 N.W. 415

STATE

v.GASTON.

Supreme Court of Iowa.

Dec. 14, 1895.

Appeal from district court, Benton county; George W. Burnham, Judge.

The defendant was indicted for the crime of rape, and was convicted of an assault with intent to commit rape. He appeals. Affirmed.Matt Gaasch and T. H. Milner, for appellant.

Milton Remley, Atty. Gen., for the State.

DEEMER, J.

The defendant is the foster father of the prosecutrix, who is a female under 13 years of age. A short time prior to the time it is said the offense was committed, these parties lived in Fayette county. The state, over the objections of the defendant, was permitted to prove that defendant, during the summer of 1894, had carnal knowledge of the girl in Fayette county. It is now practically conceded that this testimony was admissible for the purpose of showing the relations and dispositions of the parties; but it is contended that the court erred in not specifically instructing the jury as to the purpose for which this testimony was admitted. Defendant asked no such instruction, and the court gave none, other than the general ones with reference to the weight and credit to be given to the testimony of the various witnesses, except to say, plainly and explicitly, in at least two instructions, that, before the jury could find the defendant guilty, they must be satisfied beyond a reasonable doubt that at the time and place charged, which was in Benton county, the defendant did carnally know and abuse the prosecutrix. It is quite evident that the jury understood that they could not convict the defendant of any crime he may have committed in Fayette county. The evidence tended to show that, before coming to Benton county, the defendant was in the habit of sleeping with the girl, who was then 12 years of age, and that he frequently attempted or had sexual intercourse with her. The state claimed, and the evidence tended strongly to show, that these illicit relations and conditions prevailed between these parties after they came to Benton county. The purpose of admitting the testimony objected to is so clearly apparent that we do not think there was prejudicial error in failing to instruct with reference to this subject, especially in view of the fact that no such instruction was asked by the defendant. See State v. Watson, 81 Iowa, 380, 46 N. W. 868.

2. The indictment is in two counts,--the first charging that the defendant unlawfully and feloniously made an assault upon, and did then and there feloniously ravish and carnally know, Grace E. Gaston, forcibly and against her will; the second, that he, with force and arms, did make an assault, and then carnally knew and abused the said Grace E. Gaston, she then and there being a female child under the age of 13 years. At the trial the state dismissed the first count, and the conviction was had upon the second. In the first count it is alleged that the crime was committed on the 17th day of December, 1894. In the second it is said that the crime was committed on the 17th day of December, omitting the year. It is claimed that, as the second count does not name the year, the indictment on which defendant was tried and convicted was fatally defective, and that the court erred in charging the jury that it was alleged...