State v. Hoel

• Decision Date: 11 February 1947
• Docket Number: 46890.
• Citation: 25 N.W.2d 853,238 Iowa 130
• Parties: STATE v. HOEL.
• Court: Iowa Supreme Court

25 N.W.2d 853

238 Iowa 130

STATE v. HOEL.

No. 46890.

Supreme Court of Iowa

February 11, 1947

Boomhower & Boomhower, of Mason City, for appellant.

John M. Rankin, Atty. Gen., M. L. Mason, County Atty. of Cerro Gordo County and M. C. Coughlon, Asst. County Atty., both of Mason City, for appellee.

OLIVER Justice.

Appellant Clarence Hoel, a farmer 42 years of age, was charged with statutory rape upon a female child under 16 years of age, was convicted of the included offense of assault with intent to commit rape, and appeals. This case arose out of the circumstances detailed in State v. Evenson, Iowa, 24 N.W.2d 762. The record is much the same as in that case and contains evidence tending to show:

Appellant and Evenson had been drinking beer together and were walking around in Mason City at about noon. Evenson gave a boy a nickel to get a girl. The boy procured a girl, aged 15 years mentally deficient and almost blind, and gave her several pennies. The four walked to a place obscured by grass and bushes. The girl lay down, the two men disarranged her clothing and each had intercourse with her. There was some uncertainty whether there was actual penetration by appellant. Then, with his own person exposed, appellant lay beside her, fondling and handling her exposed body and trying to dislodge Evenson who was again upon her. A police officer interrupted the orgy.

Appellant testified he remembered pretty well what occurred and that he did not have or attempt intercourse with the girl. 'I had just scuffled with her a little bit. She moved away and I let her go.' Appellant did not testify he was then intoxicated but there was some evidence tending to show he was intoxicated immediately prior thereto.

I. The included offenses submitted to the jury were assault with intent to commit rape and assault and battery. Appellant complains of the refusal of a requested instruction listing simple assault as an included offense. Any apparent inconsistencies in some of our earlier decisions as to instructing upon included offenses, have been removed by our more recent holdings that a charge of statutory rape includes assault with intent to commit rape, assault and battery and simple assault, and that whether the court should submit any one or more of these included offenses depends wholly upon the evidence, although only rarely is the submission of assault with intent to commit rape not required. The test is whether the evidence would be sufficient to take the case to the jury if the included offense in question was the sole charge against the defendant. State v. Hoaglin, 207 Iowa 744 223 N.W. 548; State v. Ingram, 219 Iowa 501, 506, 258 N.W 186; State v. Beltz, 225 Iowa 155, 165, 279 N.W. 386; State v. Evenson, supra, Iowa, 24 N.W.2d 762.

Here all the evidence of the state shows no force nor show of force by appellant and voluntary assent by the girl. Clearly that did not require the submission of either assault or assault and battery because, though the girl could not consent to rape or assault with intent to commit rape, she legally could, and according to that part of the record did, consent to the contact with and handling of her person. State v. Hoaglin supra, 207 Iowa 744, 756, 233 N.W. 548; State v. Blair, 209 Iowa 229, 236, 223 N.W. 554.

However, appellant himself testified he scuffled with the girl and she moved away. Whether this constituted assault and battery was for the jury and it was proper to submit assault and battery as an included offense. Under his own testimony, which was the only evidence tending to show assault or assault and battery, if appellant was guilty of any offense it was of assault and battery. Therefore he is in no position to claim he is guilty of less than assault and battery. A failure to instruct as to an included offense is not error where, as here, all the evidence shows the defendant guilty of the higher offense or not guilty of either offense. State v. Crutcher, 231 Iowa 418, 421, 1 N.W.2d 195; 6 C.J.S., Assault and Battery, § 128, p. 1006.

II. A requested instruction listing, as an included offense assault with intent to commit...