State v. McCall

• Decision Date: 07 April 1954
• Docket Number: No. 48310,48310
• Citation: 63 N.W.2d 874,245 Iowa 991
• Parties: STATE v. McCALL.
• Court: Iowa Supreme Court

Page 874

63 N.W.2d 874

245 Iowa 991

STATE v. McCALL.

No. 48310.

Supreme Court of Iowa.

April 7, 1954.

Rehearing Denied June 18, 1954.

Geiser, Donohue & Wilkins, New Hampton, for appellant.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Everett G. Scott, County Atty. Fayette County, West Union, for appellee.

OLIVER, Justice.

Defendant was a farmer. His family consisted of his children, Letha aged fifteen years and Layton, aged eleven years. He was tried, convicted and sentenced for the crime of incest with Letha. He has appealed to this court.

There was evidence defendant had sexual intercourse with Letha approximately one hundred times during the two year period prior to and including July 21, 1952, the date of the alleged act for which defendant was tried. Letha testified defendant compelled her to submit to that act of sexual intercourse by choking her and beating her brutally, that her nose bled, her lip was cut and her head was swollen and black and blue and that defendant's fist was injured in striking her and was so swollen he was unable to use his hand for several days.

Defendant testified he took Letha to a tavern, he drank beer and she ate ice cream, she left the tavern for the car, he left the tavern about midnight and found her sitting in another automobile with a young man, the young man said something and defendant struck him, injuring his fist, after Letha and defendant arrived home they argued about the matter and defendant chastised her by slapping her twice with his open hand. He testified he never had intercourse with Letha and never talked to her about intercourse.

I. Defendant contends the court erred in overruling his motion for directed verdict, based upon the insufficiency of the evidence. One complaint is there was no proof of penetration of the female organ, which is essential to conviction of incest. State v. Judd, 132 Iowa 296, 301, 302, 109 N.W. 892; 42 C.J.S., Incest, § 5; 27 Am.Jur., Incest, section 2. This contention is not well founded. Letha was a bright girl, aged fifteen years. She had been raised on a farm and was in the tenth grade at school. She testified she understood the meaning of the term sexual intercourse, and that defendant had sexual intercourse with her, July 21, 1952. The meaning of this term is clear and is common knowledge. A dictionary definition is: sexual or carnal connection; coition. The term itself necessarily includes penetration. State v. Frazier, 54 Kan. 719, 39 P. 819; Hunley v. Commonwealth, 217 Ky. 675, 290 S.W. 511, 514; Shepherd v. State 111 Tex.Cr.R. 4, 10 S.W.2d 730; State v. Haston, 64 Ariz. 72, 166 P.2d 141, 143, 144; State v. Diamond, 50 Nev. 433, 264 P. 697. The testimony above noted, without more, was sufficient to make the question of penetration one of fact for the jury. There was also evidence her hymen had been ruptured.

Another complaint is there was no corroboration of Letha's testimony. Corroboration was not necessary. Incest is not one of the sex crimes listed in section 782.4 Code of Iowa, 1950, I.C.A., requiring corroboration of the testimony of the injured female. State v. Mentzer, 230 Iowa 804, 298 N.W. 893. Nor is Code section 782.5 which requires corroboration of the testimony of an accomplice, here applicable. This is because Letha, being under sixteen years of age, was legally incapable of consenting to sexual intercourse and hence could not be an accomplice to such crime. State v. Pelser, 182 Iowa 1, 13, 14, 163 N.W. 600; State v. Spridgen, 241 Iowa 828, 831, 43 N.W.2d 192. Letha's testimony was not incredible and was supported by other evidence and circumstances in the record. We hold it was sufficient to require submission to the jury of the case against defendant.

II. The indictment accuses defendant of the crime of incest in violation of section 704.1 of the Code and charges defendant, on or about July 21, 1952, 'committed incest with his daughter, Letha McCall.' The court submitted to the jury the offense of incest only. Defendant assigns as error the failure to submit also assault with intent to commit incest, assault and battery and simple assault, which defendant contends are included in the charge.

State v. Jones, 233 Iowa 843, 847, 10 N.W.2d 526, 528, considers the question of included offenses in a charge of incest. It concedes 'some states have held that there is such an offense as assault with intent to commit incest.' Perhaps this concession is too broad. The decisions and texts refer to an offense of 'attempt to commit incest.' State v. Winslow, 30 Utah 403, 85 P. 433, 435, 8 Ann.Cas. 908; People v. Murray, 14 Cal. 159; People v. Gleason, 99 Cal. 359, 33 P. 1111; Cox v. People, 82 Ill. 191; State v. McGilvery, 20 Wash. 240, 55 P. 115; 27 Am.Jur., Incest, section 8; 42 C.J.S., Incest, § 9; 16 Am. & Eng.Ency. of Law, 2d Ed. 141. See also 75 C.J.S., Rape, § 20.

Whether an assault with intent to commit would be the same as an attempt to commit, appears questionable. State v. Western, 210 Iowa 745, 231 N.W. 657. People v. Rupp, Cal., 260 P.2d 1, 7, states an assault with intent to commit a crime necessarily embraces an attempt to commit said crime but said attempt does not necessarily include an assault. See also State v. Murbach, 55 N.D. 846, 215 N.W. 552.

State v. Jones, 233 Iowa 843, 10 N.W.2d 526, supra, stated the question whether assault with intent to commit incest should be submitted to the jury, had never arisen in this state and could not arise under the evidence in that case, which showed the act had been completed in every detail required by law to constitute the offense. It held, also, the court was not required to submit the (lesser) included offenses of assault and battery, and simple assault since it appeared the child with whom the crime was committed could and did consent to the touching or fondling of her person. In State v. Spridgen, 241 Iowa 828, 43 N.W.2d 192, error was assigned to the refusal to instruct on assault and battery and simple assault in the trial of an incest case. In affirming the judgment of conviction, the court held the evidence showed defendant was guilty of incest or of no crime; citing State v. Jones, supra.

The statute on included offenses, Code section 785.6 provides:

'* * *, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment.'

The rule is that two factors must combine to require the submission to the jury of the included offense. (1) The so-called included offense must be necessarily included in the offense charged, and (2) The record must contain evidence justifying a finding by the jury of such included charge, rather than of some higher offense. State v. Johnson, 221 Iowa 8, 11, 12, 264 N.W. 596, 267 N.W. 91; State v. Jones, 233 Iowa 843, 845, 10 N.W.2d 526, supra. Our discussion here will be directed primarily to (1) whether the lessor offenses are necessarily included in the offense charged in the indictment or information. As pointed out in State v. Hoaglin, 207 Iowa 744, 754, 223 N.W. 548, 552:

'Much of the confusion in our previous cases has arisen from a failure to distinguish between the abstract question of what is an included offense in the charge of rape and the question of when included offenses should, under the evidence in the case, be submitted.'

State v. Marshall, 206 Iowa 373, 375, 376, 220 N.W. 106, states: '* * * where the minor offense is necessarily an elementary part of the greater, then the minor offense is included in the greater.'

In State v. Costello, 200 Iowa 313, 316, 202 N.W. 212, 213, the court instructed upon assault and battery as an included offense in an indictment for assault with intent to commit great bodily injury. This was held incorrect, because, although the evidence did show acts constituting assault and battery, 'there was no charge in the indictment of any act which could constitute an assault and battery.'

The language of the statute 'necessarily included' in the offense charged, is explicit and its meaning is clear. It is not enough that the evidence in some cases or in most cases would be sufficient to include the lesser offense. Our decisions involving included offenses in cases based upon indictments charging assault with intent to commit rape, illustrate this. They hold an indictment for assault with intent to commit rape (in ordinary language) does not include a charge of assault and battery. The reason stated is that defendant may desist without touching the person of the female. However, the evidence in most of such cases would support a charge of assault and battery.

State v. Hoaglin, 207 Iowa 744, 752, 753, 223 N.W. 548, 551, states:

'An indictment charging assault with intent to commit rape (statutory or otherwise) charges assault, and it may be so drawn as to charge assault and battery. As to whether or not the indictment for assault with intent to commit rape charges assault and battery will depend solely upon the wording of the indictment. * * *

'It is obvious that, where an indictment for assault with intent to commit rape fails to charge a battery, then it would be improper for the court to submit to the jury the crime of assault and battery.'

State v. Ellington, 200 Iowa 636, 639, 204 N.W. 307, 309, states:

'Where the charge is assault with intent to rape, assault and battery need not be submitted, unless the indictment charges force.'

In the language of State v. Desmond, 109 Iowa 72, 79, 80, 80 N.W. 214, 216, '* * * it must be averred in the indictment that the attempt was accompanied by some actual violence to the person of the woman.'

Giles v. U. S., 9 Cir., 144 F.2d 860, 861, quotes: "To be necessarily included in the greater offense the lesser must be such that it is impossible to commit the greater without first having committed the lesser.' House v. State, 186 Ind. 593, 117 N.E. 647.' State v. Petty, 73 Idaho 136, 248 P.2d 218, 219, states where...