State v. McDaniel
| Decision Date | 21 February 1973 |
| Docket Number | No. 55448,55448 |
| Citation | 204 N.W.2d 627 |
| Court | Iowa Supreme Court |
| Parties | STATE of Iowa, Appellee, v. Steve McDANIEL, Appellant. |
Robert L. Bray, Council Bluffs, for appellant.
Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., and Lyle A. Rodenburg, County Atty., for appellee.
Heard before MOORE, C.J., and MASON, RAWLINGS, HARRIS and McCORMICK, JJ.
Defendant appeals his conviction of assault with intent to commit rape. We reverse and remand.
The evidence offered by the State, had it been properly admissible, would have been ample to support a conviction. It is necessary for us to consider only certain rulings on its admissibility. The evidence shows, though the indictment does not assert, the prosecutrix was 15 years of age at the time the offense is alleged to have occurred.
On the date in question the prosecutrix went to a private home in Council Bluffs where she joined the company of several young persons, mostly married, and engaged in conversation and beer drinking. Some of those present would leave from time to time and return. The defendant was present with Jeffrey Blackman who later testified as a prosecution witness at trial. At one point during the afternoon prosecutrix, defendant, and Blackman drove to Omaha to purchase beer. Upon returning they drove down to the river and parked. Prosecutrix and Blackman testified they petted and kissed at this time while the defendant was out of the car but he claims to have observed what was occurring. All three were drinking beer. They returned to the residence where the conversation and beer drinking continued. When darkness came defendant and Blackman agreed to drive the prosecutrix to her home. As they were leaving two other young men asked to go along to buy more beer and it was agreed to go first to Omaha for that purpose. On returning they again went to a parking place near the river and it was then the attack is alleged to have taken place. There is a sharp dispute as to what then occurred. The State offered evidence sufficient to show a rape was at least attempted by one of the two men who had asked to go along and that defendant participated in a violent assault and battery upon the prosecutrix intended to aid in accomplishing it.
As corroborating testimony the State offered evidence that laboratory tests were taken to determine whether the act had been accomplished. The results were apparently inconclusive but some hearsay evidence was received to the effect one of the tests indicated the presence of spermatozoa within the person of the prosecutrix. The mother of the prosecutrix offered further corroboration by her testimony regarding the physical condition of her daughter following the incident. She testified of bruises and other signs of trauma indicating the sort of violence which might appear from forcible rape or attempted rape.
Defendant's version was that any act done was not by him but by Blackman. He sought to explain the presence of the spermatozoa by offering testimony of intercourse between Blackman and prosecutrix at the first visit to the river in the afternoon.
The offer was wholly rejected by the trial court. Notwithstanding the prosecutrix's testimony on direct examination as to the kissing and petting, defendant's counsel was not allowed to explore the subject on cross-examination. Defendant's own testimony on the same subject was categorically rejected by rulings of the trial court when offered in his defense.
I. We pass the effect of the omission from the indictment an assertion the prosecutrix was under the age of consent. The cases are legion on the proposition a girl under the age of 16 years is legally incapable of consenting to sexual intercourse and it is no defense that the child, prior to the time of the alleged offense, had sexual intercourse with other men.
'Since consent is not an issue in a prosecution for statutory rape, it has generally been held that evidence of sexual acts performed by the prosecutrix with persons other than the accused, or evidence of her general reputation for chastity, is inadmissible, when offered as an excuse or justification. * * *.' 65 Am.Jur.2d, Rape, section 85, page 811. See also State v. Bricker, 135 Iowa 343, 112 N.W. 645. It is well settled a similar rule prevails in this country in cases of assault with intent to commit rape.
* * *.' 65 Am.Jur.2d, Rape, section 23, page 773. See also 75 C.J.S. Rape § 28, page 493. It is interesting to note a different rule prevails in England and Canada. See Annot. at 81 A.L.R....
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...McLean v. United States, 377 A.2d 74, 78 (D.C.App.1977); State v. Superior Court, 113 Ariz. 22, 545 P.2d 946, 953 (1976); State v. McDaniel, 204 N.W.2d 627, 630 (1973); Holland v. Commonwealth, 272 S.W.2d 458, 460 (Ky.1954); State v. Deen, 69 Ariz. 188, 211 P.2d 460, 462 (1949). 12 For exam......
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