State v. Hoaglin, 38436.

Decision Date12 February 1929
Docket NumberNo. 38436.,38436.
PartiesSTATE v. HOAGLIN.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Henry County; Oscar Hale, Judge.

The indictment charges the defendant with the crime of what is commonly called “statutory rape,” and he was convicted of the crime of assault, with intent to commit rape. The defendant appeals. Reversed.

Stephens, Evans, and Kindig, JJ., dissenting in part.Hughes, Taylor, O'Brien & Faville, of Des Moines, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., Kenneth W. Nelson, Co. Atty., of Mt. Pleasant, and Jo. R. Jaques, Asst. Co. Atty., of Ottumwa, for the State.

WAGNER, J.

The question of interest in this case is as to what, if any, offenses should have been submitted as included offenses within the crime charged in the indictment and under the evidence as disclosed by the record. The indictment is as follows: “The Grand Jury of the County of Henry in the name and by the authority of the State of Iowa, accuses Earl Hoaglin of the crime of rape, committed as follows: For that the said Earl Hoaglin on or about the thirty-first day of July in the year of our Lord, nineteen hundred twenty-six, in the County and State aforesaid, did carnally know and abuse a female under the age of seventeen years, towit: Ethel Coen, she being at that time less than seventeen years of age, and the defendant, Earl Hoaglin, at the time being over the age of twenty-five years, contrary to and in violation of law.”

It is provided by section 13920 of the Code, that the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment. It is also provided by section 13918 of the Code, that, where there is a reasonable doubt of the degree of the offense of which the defendant is proven to be guilty, he shall only be convicted of the lower degree. All crimes in this state are statutory. However, members of the profession, frequently speak of “common-law rape” and “statutory rape.” In many instances, in our criminal code, the act, or acts, constituting a crime are designated and the crime named. To illustrate, section 12910 of the Code designates the act, and names the crime as murder. In section 12979 of the Code, after defining the crime, the words used are: He “shall be deemed guilty of sodomy.” In section 12994, the acts, as constituting the offense, are designated, and said legislative enactment provides: He shall be guilty of burglary.” In section 13005, after naming the acts which constitute the offense, the statutory law provides: He is guilty of larceny.” In section 13038, after providing what constitutes the offense, it is further provided: He is guilty of robbery.” Likewise, in sections 13162 and 13165, it being provided in the former section they are guilty of a conspiracy,” and in the latter section, he is guilty of perjury.”

Our statute does not provide in terms that the commission of certain acts shall constitute the crime of “rape.” It is true that the word “rape” appears as a heading to chapter 566 of the Code. However, this caption was placed there by the editor of the Code. Section 12966 thereunder provides: “If any person ravish and carnally know any female * * * by force or against her will, or if any person * * * carnally know and abuse any female child under the age of sixteen years, or if any person over the age of twenty-five years carnally know and abuse any female under the age of seventeen years, he shall be imprisoned in the penitentiary,” etc. It will be observed that the word “rape” is not used in the statute. Section 12967 provides for punishment of a person who unlawfully has “carnal knowledge of any female by administering to her any substance, or by any other means producing such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, or” who has “such carnal knowledge of an idiot or female naturally of such imbecility of mind or weakness of body as to prevent effectual resistance.” It will also be observed that the word “rape” is not used in this section. The sole remaining section of said chapter, to wit, section 12968, provides: “If any person assault a female with intent to commit a rape [the Italics are ours], he shall be imprisoned,” etc. The question naturally arising is: Are the various acts described in section 12966 rape within the meaning of section 12968? The common-law definition of rape is: “The having of unlawful carnal knowledge by a man of a woman (female) forcibly and against her will, or, according to the definition preferred by some authorities, it is the unlawful carnal knowledge of a female by force and without her consent.” 22 R. C. L. 1171. In the same volume of R. C. L., at page 1172, we find the following appropriate language: “In England and in practically all of the states of this country, carnal knowledge of a girl under a stated age, with or without her consent is made a crime by statute. In England the statutory crime is not denominated rape, and the English Judges have escaped the confusion of ideas which in this country has no doubt arisen from the fact that two essentially different crimes have been called by the same name. In this country, however, the offense has come to be known generally as statutory rape, and is denominated rape in many states.” It is thus manifest that, when the term “statutory rape” is used, it refers to the last two acts designated as a crime in section 12966 hereinbefore quoted.

[1] It will be observed that the acts mentioned in section 12966 of the Code, to wit, “if any person ravish and carnally know any female * * * by force or against her will,” constituted rape under the common law, although not denominated as rape in the statute. The remainder of the section provides the same punishment for the carnal knowledge and abuse of any female child under 16 years of age, and for the carnal knowledge and abuse of any female under 17 years of age, when the perpetrator is over 25 years of age. The question is: Are the various acts described in section 12966 rape within the meaning of section 12968? If not, then we must go to the common law for the definition of rape, in the application of section 12968. If we do so, then there could be no assault with intent to commit the two latter offenses described in section 12966, as they do not constitute rape at common law. In that event, there could be no assault with intent to commit rape, except for the first offense designated in section 12966. On the other hand, if we construe the various acts mentioned in section 12966 as constituting rape, then there can be an assault with intent to commit the two latter acts mentioned in said section. We are disposed to adopt this latter construction.Therefore, the charge of “rape,” based on any portion of section 12966, must necessarily include assault with intent to commit rape. Assault with intent to commit rape is made up of two elements, one is assault, and the other is intent. It necessarily follows that, if a charge of rape includes assault with intent to commit rape, it must include an assault. It would be an anomalous proposition to say that the crime of rape includes the crime of assault with intent to commit rape, and does not include a simple assault, for the assault is the basis of the whole charge in assault with intent to commit rape.

A charge of rape also includes assault and battery, for a battery is only the completion of an assault. The very first act in the perpetration of the crime of rape is an assault. If, at the time of making the assault, the perpetrator has the intent to commit the crime of rape, he is instantaneously guilty of assault with intent to commit rape. If he complete the act by penetration of the body of the female, and she be under the prohibited age, he is then guilty of the crime of rape. However, if, at the time of making the assault, it be against the will, or not with the consent of the prosecutrix, and he does not have the intent to commit rape, and does not proceed any farther, he is guilty of nothing except the crime of assault. If, not having the intent to commit rape, he come in contact with the body of the female, and said contact be against the will or not with the consent of the prosecutrix, he is then guilty of the completed assault, to wit, assault and battery.

In an early case, Benham v. State, 1 Iowa, 542, the indictment was for mayhem, but did not in terms charge the commission of the crime of assault and battery. The defendant was convicted of the latter offense. It was the claim of the defendant that under the indictment he could not be convicted of the crime of assault and battery. This court held against the defendant, and quoted approvingly, from McBride v. State, 2 Eng. 374, the following: “Every attempt to commit a felony against the person of individuals, involves an assault. Prove an attempt to commit such felony, and prove it to have been done under such circumstances, that had the attempt succeeded, the defendant might have been convicted of the felony, and the party may be convicted of an assault, with intent to commit such felony. If you fail in proving the intent, but prove the assault, the defendant may be convicted of the common assault.” It is further stated in said case: “The defendant insists, however, that as the indictment does not allege an assault in charging the offense, therefore the verdict of the jury was not warranted; or that, while the major may include the minor offense, yet words must be used in the indictment, showing that such minor offense was committed. If, however, the indictment charges an offense under the section of the law claimed to have been violated, then, we think, whatever offense is necessarily included in that charged, may be punished, though there may be no words specifically designating the offense so included.”

This court has universally held that the...

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6 cases
  • State v. Waid
    • United States
    • Utah Supreme Court
    • April 30, 1937
    ... ... would support a finding of simple assault. To the same effect ... are the following cases: State v. Hoaglin , ... 207 Iowa 744, 223 N.W. 548, 552; State v ... Brown , 216 Iowa 538, 245 N.W. 306; State v ... Swolley , 215 lowa 623, 244 N.W. 844; ... ...
  • State v. Waid, 5807
    • United States
    • Utah Supreme Court
    • April 30, 1937
    ... ... would support a finding of simple assault. To the same effect ... are the following cases: State v. Hoaglin , ... 207 Iowa 744, 223 N.W. 548, 552; State v ... Brown , 216 Iowa 538, 245 N.W. 306; State v ... Swolley , 215 lowa 623, 244 N.W. 844; ... ...
  • State v. Johnson, 63103
    • United States
    • Iowa Supreme Court
    • April 23, 1980
    ...E. g., State v. Anderson, 222 N.W.2d 494, 497 (Iowa 1974); State v. Pilcher, 158 N.W.2d 631, 633-35 (Iowa 1968); State v. Hoaglin, 207 Iowa 744, 754, 223 N.W. 548, 552 (1929). Inclusion of the lesser offense was required even where the defendant claimed, as does this defendant, that he was ......
  • State v. Redmon
    • United States
    • Iowa Supreme Court
    • August 30, 1976
    ...person of the female. However, the evidence in most of such cases would support a charge of assault and battery. 'State v. Hoaglin, 207 Iowa 744, 752, 753, 223 N.W. 548, 551, "An indictment charging assault with intent to commit rape (statutory or otherwise) charges assault, And it may be s......
  • Request a trial to view additional results

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