State v. Jacobson, 36075.
| Decision Date | 11 March 1924 |
| Docket Number | No. 36075.,36075. |
| Citation | 197 Iowa 547,197 N.W. 638 |
| Parties | STATE v. JACOBSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.
The defendant was indicted for the crime of lewd, immoral, and lascivious conduct with a child. The jury returned a verdict of guilty. Affirmed.J. E. Williams, of Mason City, for appellant.
Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and W. P. Butler, and R. P. Thompson, both of Mason City, for the State.
On or about the 22d day of September, 1922, appellant herein was indicted by the grand jury of Cerro Gordo county for the offense of assault with intent to commit rape, it being charged that said offense was committed on or about the 10th of September, 1922. Upon trial on the said indictment, appellant was convicted of assault and battery, and was sentenced upon such conviction and served his sentence. On or about February 20, 1923, the grand jury of Cerro Gordo county returned an indictment accusing appellant of the crime of committing lewd, immoral, and lascivious acts upon and with the body of a certain child. Appellant interposed a plea of former jeopardy because of the trial on the indictment charging appellant with the crime of assault with intent to commit rape. The question was preserved in various forms throughout the trial, and is squarely presented for our determination upon this appeal.
It is conceded by the state that the act charged to have been committed on the 10th of September, 1922, for which appellant was indicted for assault with intent to commit rape, was the same transaction for which appellant was indicted for the offense involved in this case. The question is whether or not a trial and conviction of assault and battery upon an indictment for assault with intent to commit rape constitutes jeopardy so as to bar a subsequent prosecution for the crime of committing lewd, immoral, and lascivious acts with a child, where the two indictments refer to one and the same transaction.
[1] It is a well-established rule that where the same transaction constitutes two separate and distinct criminal offenses a conviction or acquittal of one is not a bar to a prosecution of the other. This has been held in a great variety of cases. For example: An acquittal under an indictment for larceny is not a bar to a prosecution for burglary or for breaking and entering with intent to commit larceny, although but one transaction is involved. State v. Ingalls, 98 Iowa, 728, 68 N. W. 445. So an acquittal of a charge of breaking and entering a building is not a bar to a prosecution for feloniously receiving stolen property from said building by means of breaking and entering. State v. Broderick, 191 Iowa, 717, 183 N. W. 310. A person who keeps a place and intoxicating liquors therein in violation of one provision of the Code may also be held guilty of maintaining a nuisance under another provision of the statute. State v. Johns, 140 Iowa, 125, 118 N. W. 295. The conviction under a federal statute for breaking and entering a post office is not a bar to a subsequent prosecution by the state for burglary under an indictment charging the same state of facts. State v. Moore, 143 Iowa, 240, 121 N. W. 1052, 21 Ann. Cas. 63. An acquittal of the offense of uttering a forged instrument is not a bar to a prosecution for the forgery of said instrument. State v. Blodgett, 143 Iowa, 578, 121 N. W. 685, 21 Ann. Cas. 231. An indictment charging the maintenance of a liquor nuisance is not a bar to a subsequent indictment charging the offense of bootlegging, although the two indictments are predicated upon the same testimony and are provable by the same testimony, and none other. State v. Cleaver (Iowa) 196 N. W. 19. The cases might be multiplied at length. A large number of illustrative cases are collected in 16 C. J., p. 273.
[2] The question as to what is the proper test for determining whether there has been former jeopardy is one that has frequently been before the courts. The rule now generally recognized is that, in order that the plea of former jeopardy may be available, it must appear that the two offenses are in substance the same, or of the same nature, or same species, so that the evidence which proves the one would prove the other. If, however, an essential element of one offense is not necessarily present in the other, then there is no former jeopardy, although the same evidence may be offered to sustain the indictment in each case.
[3] It is also a generally-recognized rule that, where one crime is included in and forms a necessary part of another, and is in fact but a different degree of the same offense, and where on a prosecution for the higher offense a conviction may be had in such a case for the lower offense, then a conviction or acquittal of the higher offense will bar a prosecution of the lower offense. The converse of this rule is also recognized. State v. Sampson, 157 Iowa, 257, 138 N. W. 473, 42 L. R. A. (N. S.) 967;State v. Murray, 55 Iowa, 530, 8 N. W. 350;State v. Gleason, 56 Iowa, 203, 9 N. W. 126;State v. Mikesell, 70 Iowa, 176, 30 N. W. 474;State v. Paul, 81 Iowa, 597, 47 N. W. 773.
The real question that confronts us in this case is whether or not the offense of committing lewd, immoral, and lascivious acts upon a child is included within the higher offense of assault with intent to commit rape.
The statute under which the former indictment was returned is Code, § 4769, and is as follows:
“If any person assault a female with intent to commit a rape, he shall be imprisoned in the penitentiary not exceeding twenty years.”
The section under which the indictment in the instant case was returned is Code Supplement 1913, § 4938a, and is as follows:
“Any person over eighteen years of age who shall willfully commit any lewd, immoral or lascivious act upon or with the body or any part or member thereof, of a child of the age of thirteen years, or under, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, or of such child, shall be punished by imprisonment in...
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