State v. McDevitt

• Decision Date: 14 October 1886
• Parties: STATE v. MCDEVITT.
• Court: Iowa Supreme Court

69 Iowa 549

29 N.W. 459

STATE

v.MCDEVITT.

Supreme Court of Iowa.

October 14, 1886.

Appeal from Cerro Gordo district court.

The defendant was indicted for the crime of an assault with an attempt to commit rape. The jury returned a verdict of guilty, and judgment was rendered upon the verdict. The defendant appeals.Blythe & Morkley, for appellant.

A. J. Baker, Atty. Gen., for the State.

ADAMS, C. J.

The evidence shows beyond controversy that the prosecutrix, Chloe Rhodes, while traveling along the highway in company with her sister and another girl, was approached by the defendant, a stranger to all of them, and was asked by him to be allowed to have sexual intercourse with her; that she promptly refused him; and that thereupon he assaulted her, threw her down in the road, and attempted to accomplish his purpose, and desisted only when the other girls approached, and the prosecutrix's resistance was such as to render it evident that his efforts would be ineffectual.

The defendant asked an instruction in these words: “If the defendant assaulted the prosecutrix with an intent to have carnal knowledge of her, provided he might compass his design finally by gaining her consent, and struggled, and afterwards desisted because she would not consent, the defendant would not be guilty of the crime charged against him.” The court refused this instruction, and the defendant complains of the refusal. In our opinion, the instruction refused was substantially answered by the sixth instruction given, which is in these words: “In this case it must be shown by the evidence not only that the defendant committed an assault on the female Chloe Rhodes, but that he did so with the intent to compel her, by force and against her will, to have sexual intercourse with him, notwithstanding any resistance which she might make.”

The defendant asked an instruction in these words: “If you find from the evidence that the prosecutrix, at the time of the alleged assault, by her conduct or manner, invited, rather than repelled, the advances and acts, if any, of the defendant, and if you find that by her acts and conduct she led the defendant to suppose that she was willing that he should take hold of her, then such act of the defendant would not amount to an assault.” The court refused this instruction, and the defendant complains of the refusal.

Without stopping to inquire in regard to the correctness of the instruction, it is sufficient to say that we fail to find a particle of evidence tending to show that the prosecutrix's acts were calculated to invite the defendant's advances, or that she was willing that he should touch her person. The defendant relies upon evidence tending to show that the prosecutrix was walking slowly along the road. But the fact is that the other girls had stopped by the way to pick plums and crab-apples, and the prosecutrix did not wish to part from their company, and yet did not wish to stop. Besides, if she had walked slowly without any reason for so doing, that is, had loitered by the way, there would have been nothing in her act which should have afforded the defendant the slightest encouragement to approach her with libidinous intentions, or to lay his hand upon her person.

The defendant relies upon evidence tending to show that he approached her with his pantaloons torn, and his private parts exposed, and that she talked to him, and did not scream nor run. But the only talk between them, so far as the evidence shows, consisted of his infamous proposition and her prompt refusal. That she neither screamed nor ran is no evidence against her. She had to protect herself and her young companions, and this she might well have thought that she could do best by maintaining her ground, and not by separating herself, and expending her strength in flight. If the defendant took encouragement from such fact, he must have been utterly destitute of any proper conception of female virtue.

The defendant asked an instruction in these words: “If you believe that any witness examined in this case has knowingly and intentionally testified falsely to any material matter, all of such witness' testimony may be disregarded by you.” The court refused this instruction, and the defendant complains of the refusal. He contends that the prosecutrix knowingly testified falsely to material matters, and that the jury would have been justified in disregarding all her testimony; but we do not think this is so. We have examined her testimony with great care, and we have to say that it appears to us entirely credible. There is, to be sure, a slight discrepancy between her testimony and that of the others in some unimportant particulars, but it only discloses a little difference of observation or memory, or both, and does not tend in any degree to...