State v. Heft

• Decision Date: 29 September 1910
• Citation: 127 N.W. 830,148 Iowa 617
• Parties: STATE v. HEFT.
• Court: Iowa Supreme Court

148 Iowa 617

127 N.W. 830

STATE

v.HEFT.

Supreme Court of Iowa.

Sept. 29, 1910.

Appeal from District Court, Buchanan County; F. C. Platt, Judge.

Prosecution for rape upon a child under 15 years of age. Plea of not guilty. Trial to a jury and verdict of guilty of the crime of rape as charged in the indictment. Judgment was entered upon the verdict fixing punishment at 30 years in the penitentiary. Defendant appeals. Reversed and remanded.Cook & Cook, for appellant.

H. W. Byers, C. W. Lyon, and R. J. O'Brien, for the State.

EVANS, J.

Upon the return of the indictment in this case, the defendant filed a motion to quash the same because the grand jury was not drawn in the manner required by law. This complaint has many phases and specifications, all of which center about two or three principal facts. The February, 1909, term of the Buchanan district court began on February 15th. On that day the grand jury panel appeared, and a grand jury of seven persons was selected therefrom. On February 16th the grand jury was formally discharged for the term by order of the court, and its members were told to return at the next term, which would be in September. Later in the term, for some reason, the court ordered the grand jury to be reconvened. The method adopted was that the panel was summoned and a new grand jury drawn therefrom. The second drawing occurred on February 23d and resulted in the selection of two grand jurors out of the panel who were not selected as grand jurors on the first day of the term. The other five grand jurors were selected to serve for the February term at each drawing. The general course of appellant's argument is that the seven jurors first drawn necessarily, as a matter of law, constituted the grand jury for the February term, and that the court was without power to order in the panel and to draw another grand jury for the same term.

The question here argued has been fully covered by our previous decisions. That the court could properly have reconvened the same grand jury--that is, the same seven grand jurors who were selected on the first day of the term--as a February grand jury, was held in State v. Phillips, 119 Iowa, 652, 94 N. W. 229, 67 L. R. A. 292. But the failure to proceed in this manner was in no sense fatal to the indictment. The court had equal power for proper reasons to recall the entire panel and to order a redrawing of a grand jury therefrom. This was so held in State v. Hughes, 58 Iowa, 165, 11 N. W. 706;State v. Disbrow, 130 Iowa, 19, 106 N. W. 263. Somewhat analogous also is State v. Hart, 67 Iowa, 142, 25 N. W. 99. The general reasons underlying these cases are that the trial court has full power to discharge the grand jury for the term. It may also during the term set aside such order and recall the same grand jury. It has like power to let the order of discharge stand and to recall the grand jury panel and to select a new grand jury therefrom. The exercise of such power involves no presumptive hardship toward any defendant. It has long been the settled law of this state that a substantial compliance with the statute in the selection of grand jurors is sufficient, and that a slight deviation from statutory methods and a merely technical irregularity will not invalidate an indictment, unless it may reasonably be inferred from the circumstances that some prejudice has resulted to the defendant. State v. Carter, 121 N. W. 801;Shaw v. Orr, 30 Iowa, 355;State v. Brandt, 41 Iowa, 593. The trial court properly overruled the motion to quash the indictment.

2. The defendant was tried under the following indictment: “The grand jury of the county of Buchanan, in the name and by the authority of the state of Iowa, accuses John Heft of the crime of rape committed as follows: The said John Heft on or about the 15th day of November, in the year of our Lord one thousand nine hundred and eight, in the county aforesaid, did in and upon one Clara Heft, then and there being a female child under the age of fifteen years, unlawfully, willfully, and feloniously make an assault, and did then and there carnally know and abuse said Clara Heft, contrary to and in violation of law.” The defendant demurred to the same as being bad for duplicity, in that it charged two offenses. Appellant's argument is that the indictment charges the crime of rape upon a child under 15 years of age, and that it also charges assault. It is argued that assault is not a necessary element of the crime of rape upon a child under 15 years of age. Granting for the sake of argument that such crime may be committed without an assault, it does not follow that it is necessarily committed in that way. The crime may be committed upon a child under age whether she consent or refuse. If she consent, the law will not deem it a consent. And if she actually refuse and resist, she only does in fact what she is presumed to do in law, and in a legal sense the offense is the same in either case. If rape should be committed by actual force upon a resisting female under age, it would necessarily involve an actual assault. The indictment, therefore, charges but one offense, and it is not bad for duplicity. State v. Casford, 76 Iowa, 330, 41 N. W. 32;State v. Peterson, 110 Iowa, 647, 82 N. W. 329.

3. We proceed now to the consideration of a question upon which the members of the court are equally divided in opinion. The views with which the writer of the opinion is in accord will be first stated.

The prosecutrix is the daughter of the defendant and was only 13 years of age at the time of the alleged offense. The corpus delicti is established, if at all, by her testimony alone. As might have been expected, such testimony was not very definite in its terms and was adduced somewhat by the aid of leading questions, which the court may properly permit in such a case. Her evidence was such, and likewise the corroboration, that a jury might have been satisfied therefrom beyond a reasonable doubt that an offense was committed, and yet might have had reasonable doubt as to whether such offense was rape accomplished, or merely an assault with intent to commit rape. The defendant asked the court to instruct the jury that, if they had a reasonable doubt on this question, they could find the defendant guilty only of the lower offense, viz., assault with intent to commit rape. The instruction as asked was in substantial accord with section 5377 of the Code, with some verbal inaccuracies, however. It was sufficient to bring the subject fairly to the attention of the court, and the evidence was such as to require an instruction on that subject. The defendant was entitled either to the instructions as asked or to some other proper instruction upon that subject. It is contended by the state that the question was fairly covered by the instructions of the court as given. We have gone through the record with care, and we think it must be said that the court overlooked this feature of the case.

Code, § 5377, is as follows: “Where there is a reasonable doubt of the degree of the offense of which defendant is proven to be guilty, he shall only be convicted of the lower degree.” In construing this section in State v. Jay, 57 Iowa, 164, 10 N. W. 343, this court said: “In the thirteenth instruction given by the court as to the reasonable doubt which entitles a party to an acquittal, no reference is made to the provisions contained in section 4429 (now section 5377) of the Code that, when ‘there is a reasonable doubt of the degree of the offense of which defendant is proven to be guilty, he shall only be convicted of the lower degree.’ Indeed, the instructions throughout are silent as to this rule of law. We think defendant was entitled to full instruction upon the question of reasonable doubt, and such as were applicable to the character of the crimes included in the indictment, and that as the instructions omitted the important qualification that a conviction could only be had for the highest crime included in that charged of which there was no reasonable doubt of guilt, under the evidence, the omission was prejudicial to defendant.” To the same effect is State v. Neis, 68 Iowa, 469, 27 N. W. 460.

Our attention is directed to instruction 12, which is as follows: “(12) The indictment in this case charges the defendant with the crime of rape. Under the law, however, if the facts justify it, defendant may be found guilty of assault with intent to commit rape. You would not be justified, however, in finding the defendant guilty of assault with intent to commit rape if you find from the evidence that he carnally knew and abused the prosecutrix as charged in the indictment, that she was under the age of 15 years at the time, and that the defendant actually penetrated the sexual organs of the prosecuting witness, Clara Heft, with his organ of generation, for in such case he is guilty of rape, and of rape only.”

We think, however, that this instruction clearly fails to give the defendant the benefit of section 5377, and to comply with the rule laid down in the cited cases. Indeed, this instruction emphasizes the converse of the rule argued for by the defendant.

Our attention is also directed by the state to instructions 15 and 16, which were given by the court, and which are as follows:

“(15) You are instructed that it is rape to carnally know and abuse a female child under the age of 15 years, without reference to whether she consent to the intercourse, or whether she refuses or resists. If a female child is under the age of 15 years, she is incapable of giving her consent to the act. Therefore, if you find from the evidence that the defendant attempted to have sexual intercourse with Clara Heft, and that she was under the age of 15 years at that time, and if you find that the defendant failed in his attempt to penetrate the body of the child with his organ of generation, he was guilty of assault with intent to commit rape, even though you find that the...