State v. Jerome

• Citation: 48 N.W. 722,82 Iowa 749
• Parties: STATE v. JEROME.
• Decision Date: 13 May 1891
• Court: United States State Supreme Court of Iowa

82 Iowa 749

48 N.W. 722

STATE

v.JEROME.

Supreme Court of Iowa.

May 13, 1891.

Appeal from district court, Polk county; M. KAVANAUGH, Judge.

Defendant was indicted and convicted of an assault with intent to commit rape upon a female child under the age of 13 years. He now appeals to this court.E. B. Evens, for appellant.

John Y. Stone, Atty. Gen., and T. A. Cheshire, for the State.

BECK, C. J.

1. Counsel for the defendant insists that the verdict is wanting in support of the evidence. We think otherwise. The defendant was a stranger to the mother and grandparents having the care of the child upon whom the outrage was committed, and at the time was intoxicated, though not to such an extent as to be deprived of reason. Without the knowledge of those having charge of her, he took the child, who was four years of age, away from the house, and kept her about six hours, taking her to different parts of the city, and to some out of the way places. Before he returned, the child was seen in his company, her face and clothing very dirty and her underclothing down, which he pinned up. He procured some one to wash her face, and afterwards took the child to her home. She complained in his presence of the abuse she had endured from him, and specified in the plainest language that he had assaulted her in an attempt to have carnal knowledge of her. He declared that the child's statements were incorrect. Her underclothing and person indicated the abuse she had received from him. We think the evidence sufficiently supports the verdict. The punishment, 10 years in the penitentiary, is severe, but merited. We think men who are capable of committing such detestable crimes ought to be taught to fear the punishment the law provides for such offenses. The protection of children and the good of the state demand they be kept separate from the mass of the people.

2. The court gave this instruction to the jury: “The law provides that if any one carnally know and abuse any female child under the age of thirteen years he is guilty of rape, and shall be punished.” “It further provides that, if any person assault a female with intent to commit rape, he shall be punished.” “The defendant, as you have seen, is charged with assault with intent to commit rape.” An assault is an unlawful attempt to commit violence upon the person of another, with the present ability to do so. “If it has been proven beyond a reasonable doubt that the defendant, within three years next preceding the 27th day of May, 1890, in Polk county, Iowa, did make an assault upon one Myrtle Day, with intent to have sexual intercourse with the said Myrtle Day, and that the said Myrtle Day was under thirteen years of age, you will find the defendant guilty; if you fail to so find, you will find the defendant not guilty of assault with intent to commit rape.” Counsel objects to this instruction, upon the ground that the rape is not defined in Code, § 3873, under which the indictment is found, in the language of the instruction. This statement does not attempt to define “rape,” but to present the law which provides punishment for an assault with an intent to commit rape. Code, § 3861, provides that “if any one carnally know and abuse any female child under the age of thirteen years he shall be punished by imprisonment in the penitentiary for life, or for any term of years.” The offense here contemplated is rape. Code, § 3873, provides punishment for an assault with intent to commit rape. The two statutes, considered together,...