State v. Harrison

• Decision Date: 21 November 1914
• Docket Number: No. 29819.,29819.
• Citation: 167 Iowa 334,149 N.W. 452
• Parties: STATE v. HARRISON.
• Court: Iowa Supreme Court

167 Iowa 334

149 N.W. 452

STATE

v.HARRISON.

No. 29819.

Supreme Court of Iowa.

Nov. 21, 1914.

Appeal from District Court, Clarke County; H. K. Evans, Judge.

Defendant was indicted, tried, and convicted of the crime of assault with intent to commit rape, and he appeals. Affirmed.O. M. Slaymaker, of Osceola, for appellant.

George Cosson, Atty. Gen., and Wiley S. Rankin, Sp. Counsel, of Des Moines, for the State.

DEEMER, J.

No claim is made that the testimony does not support the verdict, and the only contentions relate to a ruling on testimony and to the correctness of certain instructions given by the trial court.

[1] The crime is alleged to have been committed on one Capitola Koble on the morning of Friday, November 21, 1913. The prosecutrix is a school teacher, and it is claimed that defendant assaulted her on her way to school. Shortly after leaving her home she appeared at the residence of George Baker, and her clothing was muddy, and she was in an exhausted and nervous condition. Leaving Baker's, she went to her own home, and her mother was permitted to testify, over defendant's objections, that she (prosecutrix) was very nervous, ate no dinner on that day, and complained of a violent headache. In this ruling there was no error. Prosecutrix's condition, both bodily and mental, shortly after the alleged assault, was a material inquiry, and it was also proper to show the extent thereof. State v. McLaughlin, 44 Iowa, 82;State v. Montgomery, 79 Iowa, 737, 45 N. W. 292;State v. Steffens, 116 Iowa, 227, 89 N. W. 974.

[2][3][4] II. An instruction defining “intent” and the words “ravish and carnally know” is complained of. If this stood alone, it would be erroneous, in that it omitted the element of force and lack of consent on the part of prosecutrix; but the instruction shows on its face that it was not intended to be all-inclusive, and, taken in connection with the others, it was not erroneous. It was essential for the state to show, in making out the offense, that defendant, in what he did, intended to have sexual intercourse with the prosecutrix. This the instruction says; but it does not authorize a conviction on this fact alone, and the one next following requires the state to show that the defendant must have intended to ravish the prosecutrix forcibly and against her will. We here quote from this latter instruction as follows:

“In order to constitute the offense charged, the evidence must show that the defendant assaulted the prosecuting witness, not only with the intent to gratify his passions, but that he intended to do so at all events, notwithstanding her refusal, and any resistance she might be able to make against such assault. And before you can convict the defendant of the crime charged, you must find that he assaulted the said Capitola Koble as aforesaid with the intent and purpose to accomplish his design and ravish said Capitola Koble, notwithstanding her resistance, and was only prevented from accomplishing his design by the resistance of the said Capitola Koble. Merely to solicit sexual intercourse, to propose it, or even to go to the extent of committing an assault, or an assault and battery, upon the said Capitola Koble in pressing such solicitation, would not be sufficient, unless you further find it was the design and purpose of the defendant to have sexual intercourse with the said Capitola Koble, notwithstanding any resistance she might make, and that he was only prevented from doing so by the resistance of the said Capitola Koble.”

This is a correct exposition of the law, and the instruction complained of should be construed with reference thereto. So construed, there is no error.

[5] III. The trial court did not instruct as to an assault with intent to commit a great bodily injury, although it was requested to so instruct. In this there was no error. Conceding, arguendo, that the indictment is broad enough to cover such an offense, and that it is an included one, still there was no error, for there is an entire absence of testimony to justify such a charge. State v. King, 117 Iowa, 484, 91 N. W. 768;State v. Snider, 119 Iowa, 20, 91 N. W. 762. The trial court did instruct as to assault and battery and simple assault, and this, under the testimony, was sufficient.

[6] IV. The trial court gave an instruction as to defendant's flight, and its bearing upon the case. Abstractly the correctness of the instruction is conceded, but it is contended that there was no testimony to justify such an instruction. We find that the officer who arrested the defendant testified: “When I arrested him [defendant], he said he was trying to get away.” This testimony was given in connection with an admission that the defendant had assaulted the prosecuting witness, that he met her and threw her down, and that she pulled his hair and struck him. An admission that, when arrested, he was in the act of running away, is quite as effectual as independent proof that he was then attempting to flee, and it justified the giving of the instruction. By the instruction itself the court left it to the jury to say whether or not defendant was attempting to get away at the time of his arrest. There was no prejudicial error here.

[7] V. An instruction given by the court with reference to defendant's drunken condition at the time of the assault reads as follows:

“The defendant, as one of his defenses, says that at the time of the commission of the alleged crime as charged in the indictment the defendant was drunk. You are instructed that if you find from the evidence that the defendant, at the time of the alleged assault, was in such a state of drunkenness...