State v. Johnson

• Citation: 133 Iowa 38,110 N.W. 170
• Parties: STATE v. JOHNSON.
• Decision Date: 08 January 1907
• Court: Iowa Supreme Court

133 Iowa 38

110 N.W. 170

STATE

v.JOHNSON.

Supreme Court of Iowa.

Jan. 8, 1907.

Appeal from District Court, Benton County; G. W. Burnham, Judge.

The defendant was indicted for the crime of assault with intent to commit rape upon a female child under the age of consent, and. having been adjudged guilty, appeals. Affirmed.Tom H. Milner, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty Gen., for the State.

WEAVER, J.

1. On the trial below the appellant objected to the admission of the testimony of several witnesses on the ground that they had not been examined before the grand jury and there was no sufficient showing that they were examined before the committing magistrate or that the minutes attached to or accompanying the indictment were made, preserved, and returned by such magistrate. The objections were properly overruled. Code, §§ 5230 and 5272 provide that the grand jury may act and return a verdict upon the minutes of the proceedings had and evidence taken before the magistrate, and in such case it is not necessary that the witnesses be called or examined again before the grand jury. The mere fact that the return of the magistrate is informal or is not certified in the manner required by the statute is not fatal to the indictment nor does it afford good ground of objection by the defense to a witness or to his testimony if otherwise competent. State v. Cook, 92 Iowa, 483, 61 N. W. 185;State v. Kepper, 65 Iowa, 745, 23 N. W. 304;State v. Marshall, 105 Iowa, 39, 74 N. W. 763;State v. Turner, 114 Iowa, 426, 87 N. W. 287;State v. Rodman, 62 Iowa, 456, 17 N. W. 663;State v. Wise, 83 Iowa, 596, 50 N. W. 59.

2. In submitting the case for a verdict, the court instructed the jury as to the crime charged and the included crime of simple assault, but omitted any references to assault and battery, and an exception is urged upon this omission. There was no error in this respect. In State v. Trusty, 118 Iowa, 498, 92 N. W. 677, and other cases of that class upon which appellant relies, the indictments charging the rape, or assault with intent to commit rape, made use of language which alleges bodily injury at the hands of the accused, and thus, upon a plea of not guilty, made it proper, if not necessary, to instruct the jury upon the offense of assault and battery as well as simple assault, but in the case before us as the indictment does no more than charge an assault with intent, and, if the felonious intent was not sufficiently established, there was nothing left for the consideration of the jury except the alleged assault. To have submitted an instruction upon assault and battery where the indictment contains no charge or allegation of battery, and secured a conviction of that offense, would have been manifest error for which the accused could have successfully appealed to this court. State v. McAvory, 73 Iowa, 557, 35 N. W. 630;State v. Hutchinson, 95 Iowa, 569, 64 N. W. 610;State v. Miller, 124 Iowa, 429, 100 N. W. 334.

3. The sufficiency of the corroborating evidence is denied, but we think the contention not well founded. Without attempting to relate the testimony, it is sufficient to say that there is evidence from one or more witnesses other than the prosecutrix of the conduct of the accused in seeking the child, in decoying her away from her young sister, in fastening the door when with her alone in the room, and in other acts on his part for which no explanation is apparent except a purpose to commit the outrage with which he is charged. The corroboration is abundant if the testimony is to be credited, and that was a question for the jury alone.

4. The testimony tended to show at least two criminal attempts and at the...