State v. Miller

• Decision Date: 12 July 1904
• Citation: 100 N.W. 334,124 Iowa 429
• Parties: STATE v. MILLER.
• Court: Iowa Supreme Court

124 Iowa 429

100 N.W. 334

STATE

v.MILLER.

Supreme Court of Iowa.

July 12, 1904.

Appeal from District Court, Cerro Gordo County; C. H. Kelley, Judge.

Conviction of assault with intent to commit rape. The defendant appeals. Affirmed.Blythe, Markley & Rule and Cliggitt, Rule & Keeler, for appellant.

C. W. Mullan, Atty. Gen., and L. De Graff, Asst. Atty. Gen., for the State.

WEAVER, J.

In most respects the facts attending the alleged assault committed are not disputed. The appellant was a carrier in the rural mail service in the vicinity of Clear Lake, Iowa, and the prosecuting witness, a young lady 22 years of age, was teaching school in a neighborhood upon or near the mail route. The acquaintance between the parties was slight, but on one prior occasion the prosecuting witness had ridden to town in the mail wagon with appellant. On June 19, 1903, the prosecuting witness again entered the wagon for the purpose of riding to Clear Lake. The vehicle was a covered one, and soon after the lady got in the appellant closed the door, giving as an excuse for the act that it was beginning to rain. Before reaching town appellant stopped the team and solicited sexual intercourse with his passenger. She refused, and, as she sought to withdraw from him, he threw his arm around her and drew her upon his lap. In the struggle she succeeded in pulling one of the sliding doors of the wagon partly open, and put her foot in the opening to prevent his closing it again, when he grasped her leg or ankle, pulling it back, and again closed the door. It is unnecessary for us to state in all its details the story of the affair, except to say that in spite of continued resistance of the prosecuting witness the appellant continued his solicitations and vigorous efforts to overcome her opposition, putting his hands upon her person, for forcing her back against the seat cushion, which he had pulled around to facilitate his purpose, and in this position threw the weight of his own person upon that of the witness. At this stage of the contest the prosecuting witness screamed. Appellant did not at once desist from his attempt, but after repeated and unsuccessful efforts to accomplish connection he released his victim. The clothing of the witness was much disarranged, and her umbrella, comb, and pocketbook were scattered on the floor of the wagon. At her request the appellant helped her to recover the articles mentioned. His whip had fallen in the road, and while he went back for it the witness remained in the wagon. When the appellant stopped the wagon again to deliver mail at the home of a Mrs. Hoffman, where the witness was acquainted, she left him and entered the house. After arranging her toilet, she explained to Mrs. Hoffman that she had left the mail wagon because the driver had been “too familiar.” She then walked to town, where, after meeting several acquaintances, to whom she did not mention the assault upon her, she went to the home of an aunt, to whom she told the story of the occurrence in its entirety.

It is an unusual and remarkable instance in this class of cases that the story told by appellant as a witness in his own behalf coincides in almost every detail with the testimony given by the woman whom he confessedly assaulted. He insists, however, that he had no intention of debauching the witness by force and against her will, and that all his demonstrations were employed and made use of with the hope and for the purpose of inducing her to yield her consent to his desire, and that, when he found she was determined in her refusal, he voluntarily abandoned the effort. As will readily be seen, the assault upon the prosecuting witness and the intent to have intercourse with her being thus conceded, the vital and controlling question in the case is whether the appellant in making said assault intended to accomplish the desired intercourse by force, notwithstanding any and all resistance the witness might make. We have not stated all the facts in the case, some of which go to strengthen the theory of the state that the assault was made with felonious intent, while others corroborate appellant's claim that he did not intend to force the intercourse against the woman's will; but enough has been disclosed to make it very clear that the question was one for the jury. The verdict returned must therefore be held conclusive of the appellant's guilt, unless some error to his prejudice be found in the record of the trial.

1. The indictment, after properly laying the venue, simply alleges that the appellant on the date named “did unlawfully, willfully, feloniously, and with force and violence make an assault upon one Ora Pierce, a female, with intent then and there her, the said Ora Pierce, willfully, unlawfully, and feloniously to ravish and carnally know by force and against her will.” As will be noticed the allegations here made distinctly charge an assault, but do not charge any actual physical violence or injury constituting a battery. Under an indictment in this form this court has held that the accused cannot be convicted of assault and battery. State v. McAvoy, 73 Iowa, 557, 35 N. W. 630. The crime of assault and battery is not an essential element of assault with intent to commit rape; for the latter offense may be committed without actual violence to or contact with the person assaulted, and upon trial for assault with intent to commit rape the accused can be convicted of assault and battery only where the indictment, in addition to the charge of assault, sets forth facts amounting to a battery. State v. Hutchinson, 95 Iowa, 569, 64 N. W. 610.

In the case before us, while the evidence shows beyond question that an assault and battery was committed, the indictment does not so charge, and under the accusation as there made the appellant could properly be convicted of no crime other than (1) assault with intent to commit rape, or (2) simple assault. The court instructed the jury, however,...