State v. Montgomery

• Decision Date: 09 May 1890
• Citation: 45 N.W. 292,79 Iowa 737
• Parties: THE STATE v. MONTGOMERY
• Court: Iowa Supreme Court

45 N.W. 292

79 Iowa 737

THE STATE v. MONTGOMERY

Supreme Court of Iowa, Des Moines

May 9, 1890

Decided May, 1890.

Appeal from Cedar District Court.--HON. J. H. PRESTON, Judge.

THE defendant was convicted of the crime of forcible defilement and adjudged to be imprisoned to the penitentiary at Anamosa at hard labor, for the period of three years. From that judgment he appeals.

AFFIRMED.

Wheeler & Moffitt, for appellant.

John Y Stone, Attorney General, and Robert G. Cousins, for the State.

OPINION

ROBINSON, J.

The parts of the indictment necessary to an understanding of the questions presented for our determination are as follows: "The grand jury of the state of Iowa, within and for the county of Cedar, * * * in the name and by the authority of the state of Iowa, upon their oaths do aver, find and present that George Montgomery, at and within said county, on the thirteenth day of August, A. D. 1889, did wilfully, unlawfully and feloniously take one Sophia Wheelock, unlawfully and against her will, and, by force and menace and duress, compelled her, the said Sophia Wheelock, to be defiled, and then and there laid hold of her, the said Sophia Wheelock, with his hands, and held her upon the ground, and did then and there force, ravish and have carnal knowledge of her, the said Sophia Wheelock, in the manner and form aforesaid did then and there defile her, contrary to the statutes of Iowa."

I. The appellant insists that the indictment is bad for duplicity, in that it charges defendant with the crimes of forcible defilement and rape. The two offenses are much alike when the person guilty of forcible defilement has carnal knowledge of the female. In such cases the difference is largely in the degree of force required to perpetrate the crime, and in the resistance thereto. A person is guilty of rape if he "ravish and carnally know any female of the age of thirteen years or more by force and against her will." Code, sec. 3861. He is guilty of forcible defilement if he "take any woman unlawfully and against her will, and, by force, menace or duress, compel her * * * to be defiled." Code, sec. 3862. In each case the act must be unlawful and against the will of the female. In case of rape, it must be accomplished by force, and in case of forcible defilement "by force, menace or duress." The words "ravish and carnally know," used to define "rape," are not used to define "forcible defilement:" but to defile may mean "to pollute," "to corrupt the chastity of," "to debauch" or "to violate." Webst. Dict. "Violate" and "force" are synonymous with "ravish." Code, sec. 3862. By referring to the indictment, we find words used which would be proper in charging the crime of rape, but they also express elements of the crime of forcible defilement, and to some extent describe the means by which it was accomplished in this case. The indictment, considered as an entirety, clearly shows an intent to charge the offense last named, and is not, therefore, vulnerable to the objection made.

II. The appellant asks a reversal of the judgment of the district court on the ground that the evidence was not sufficient to sustain the verdict. It appears that appellant was a merchant engaged in business at Big Rock; that, about two weeks before the commission of the offense charged, the prosecutrix called at his place of business to purchase a few articles of merchandise; that she had never seen defendant before, was sixteen years of age, uneducated, without knowledge of men and of a mental development much less than the average of girls of her age; that she was accompanied by a brother, who was induced by defendant to leave the store; that the defendant was alone with the prosecutrix, and indulged in improper...