State v. Kyne

• Decision Date: 25 October 1892
• Citation: 86 Iowa 616,53 N.W. 420
• Parties: STATE v. KYNE.
• Court: Iowa Supreme Court

86 Iowa 616

53 N.W. 420

STATE

v.KYNE.

Supreme Court of Iowa.

Oct. 25, 1892.

Appeal from district court, Lyon county; SCOTT M. LADD, Judge.

The defendant was indicted for a rape, was found guilty of an assault with intent to commit rape, and sentenced to be confined in the penitentiary for the term of three years and six months. He appeals.E. Y. Greenleaf and E. C. Roach, for appellant.

John Y. Stone, Atty. Gen., Thomas A. Cheshire, and H. G. McMillan, Co. Atty., for the State.

KINNE, J.

1. The indictment charged the defendant with having committed the crime of rape. The prosecuting witness testified in response to a question by the court that there was no penetration of her person. The defendant testified that he had connection with her with her consent, and by mutual agreement. The testimony showed without conflict that all of the essential elements of the crime of rape had not been proven. The court, however, submitted to the jury the question of the defendant's guilt of the crime of rape, and also instructed them as to the lesser crimes embraced in the charge made. Appellant insists that, as there was no evidence of rape, the court erred in submitting that question to the jury. We have often held in civil cases that it is error to give an instruction containing a correct legal proposition which is not applicable to any issue in the case, (Deppe v. Railroad, 36 Iowa, 52;Roberts v. Richardson, 39 Iowa, 290; Railroad Co. v. Walker, 49 Iowa, 273;Wood v. Railroad Co., 68 Iowa, 491, 27 N. W. Rep. 473;) and that it is error to give an instruction as to a state of facts not proven, even though it be correct as an abstract legal proposition, if such instruction may tend to mislead the jury, (Moffitt v. Cressler, 8 Iowa, 122; Farr v. Fuller, Id. 347; Mundhenk v. Railroad Co., 57 Iowa, 718, 11 N. W. Rep. 656;Murphy v. Railroad Co., 38 Iowa, 539.) Many other cases might be cited to the same effect. So we have held that it is prejudicial error to put a party on trial for a crime not charged in the indictment, even though he be convicted of a lesser offense, which is sufficiently charged. State v. Tweedy, 11 Iowa, 350;State v. Boyle, 28 Iowa, 522;State v. Knouse, 29 Iowa, 118;State v. McNally, 32 Iowa, 580;State v. Andrews, (Iowa,) 50 N. W. Rep. 549. The evidence in this case would not justify conviction of rape. In fact the crime charged was not made out. It seems to us to submit to the jury the question of the defendant's guilt of a crime of which there was no evidence was not only error, but such error as that we are not justified in saying that it did not prejudice defendant's case. The defendant was entitled to have submitted to the jury questions as to which there was evidence free from the charge as to an offense of the gravest character of which there was no evidence as to his guilt. State v. Myer, 69 Iowa, 148, 28 N. W Rep. 484.

2. Appellant complains of the fourth instruction, in that the instruction ignores the fact that the intent must be to have the intercourse with the female notwithstanding any resistance she might make. The instructions must be considered together. In the eleventh instruction the law is fully and correctly stated.

3. It is insisted that the court erred in instructing the jury that they might find defendant guilty of...