State v. Jones

• Decision Date: 20 December 1909
• Citation: 123 N.W. 960,145 Iowa 176
• Parties: STATE v. JONES.
• Court: Iowa Supreme Court

145 Iowa 176

123 N.W. 960

STATE

v.JONES.

Supreme Court of Iowa.

Dec. 20, 1909.

Appeal from District Court, Pottawattamie County; E. B. Woodruff, Judge.

Defendant was charged with the crime of rape in having sexual intercourse with a female under the age of 15 years. From a conviction for the offense thus charged, he appeals. Affirmed.Ine D. Shuttleworth and Genung & Genung, for appellant.

H. W. Byers, Atty. Gen., and Charles W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

The defendant, a half-brother of the father of the prosecuting witness, who had been for some months a member of the family, was charged with having had intercourse with the prosecutrix during the night in her bed in her father's house. Her testimony, as well as that of her sister who corroborated her, tended to show that prosecutrix made no protest against defendant's advances, and submitted without any outcry or resistance whatever, although her parents and three other members of the family were within call and could readily have heard her had any outcry been made. The evidence introduced for defendant, including his own testimony, tended only to negative the fact of intercourse. Under our statute (Code, § 4756) the act of carnal intercourse with a female child under the age of 15 years constitutes rape, although it is with her consent.

1. Complaint is made of the failure of the trial court to instruct as to the included offense of assault with the intent to commit rape. It is true that if the female is over the age of 15 years, so that to constitute the crime of rape the intercourse must be by force and against her will, an assault with intent to commit rape is necessarily included. It may well be that in the latter class of cases there may be an assault; but here there is not the slightest evidence that defendant's proposal to the prosecuting witness was opposed by her. It conclusively appears from her own testimony that on this occasion, as on a previous occasion, she consented to the proposal, as she did to the consummation of the intercourse. It is well settled by our decisions that it is not error, in an ordinary prosecution for rape, to fail to instruct as to an included crime, when from the evidence it appears without conflict that defendant is either guilty of the crime charged or not guilty of any crime. State v. Stevens, 133 Iowa, 684, 110 N. W. 1037. And this rule has been applied without question in a prosecution for rape in having intercourse with a female child under the age of consent. State v. Beabout, 100 Iowa, 155, 69 N. W. 429;State v. Sherman, 106 Iowa, 684, 77 N. W. 461. There was no error therefore in failing to instruct as to any included offense.

2. Some evidence was offered by defendant as to his good character, and...