State v. Hubbard, 41918.

• Decision Date: 14 November 1933
• Docket Number: No. 41918.,41918.
• Parties: STATE v. HUBBARD.
• Court: Iowa Supreme Court

218 Iowa 239

250 N.W. 891

STATE

v.HUBBARD.

No. 41918.

Supreme Court of Iowa.

Nov. 14, 1933.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Indictment, conviction, and sentence on the charge of rape. The defendant appeals.

Reversed.Parsons & Mills and G. C. Holliday, all of Des Moines, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and Carl A. Burkman, Co. Atty., of Des Moines, for the State.

ANDERSON, Justice.

The indictment charges the crime of rape defined in section 12966, of the Code. The defendant-appellant contends that the corroboration relied upon by the state is not sufficient, under the provisions of Code, § 13900, to warrant the submission of the case to a jury, and that the court should have directed a verdict for the defendant. In view of the fact that the case must be reversed for other reasons, we will refrain from any discussion of the evidence, its weight or sufficiency, under this contention of the appellant.

The serious question in the case is the one raised by the appellant claiming error on the part of the court in its instructions to the jury, and our attention is specifically called to instructions No. 7 and No. 10. The part of instruction No. 7 against which complaint is lodged is as follows: “And you are further instructed that in considering whether or not the defendant did have sexual intercourse with said Alice Leona Snook by force and against her will, you have a right to consider the physical strength and size of the prosecutrix and the defendant, their experience and opportunity in life so far as divulged by the testimony, the conduct of the prosecuting witness with the defendant from the time she first met the defendant, during the time she rode with him in the automobile to the place where it is claimed by the prosecutrix she was raped by the defendant, her actions before and after the alleged commission of the alleged crime, all as shown by the evidence, and such other facts and circumstances as shown by the evidence bearing upon this matter.” (Italics are ours.)

Appellant also complains of the giving of the last paragraph of instruction No. 10, which is as follows: “It is not necessary for the state to establish that the force, if any, which was exercised over the prosecutrix was alone a physical force, but the force exercised, if any, may be one caused by a reasonable fear on the part of the prosecuting witness that her life was in danger, or that she was in danger of suffering great bodily injury, and in determining whether the assault was made by force and against the will of said Alice Leona Snook, you have a right to consider the physical strength and size of the prosecutrix and the defendant, their experience and opportunity in life, so far as divulged by the testimony, the conduct of the parties while they were together in the automobile, her actions before and after the alleged commission of the alleged crime, and all other facts and circumstances having any bearing upon said subject.” (Italics are ours.)

[1] The complaint lodged against both of the instructions quoted is that they assume the existence and truth of facts not proven, and which are disputed in the record. That it is error to assume facts as in existence or proven which are in controversy and disputed in the record, is too clear to warrant discussion. Especially is this true in a criminal case. Under our Constitution and statutes, juries are the triers of fact, either in civil or criminal cases, and the usurpation or assumption of this duty by the court is error and must not be sanctioned. In State v. Lightfoot, 107 Iowa, 344, 78 N. W. 41, 43, we said: “In the fourth paragraph of the charge the court stated that the evidence showed, without contradiction that the crime charged had been committed, and that the jury was to determine whether it had been committed by the defendant. It seems to us that in so doing the court clearly invaded the province of the jury. The rule is well settled that the jury alone can determine questions of fact in a criminal case, and that the judge cannot, either in his charge or at any time during the trial, declare or deny the existence of any fact bearing on the issues...