State v. Perkins

• Citation: 171 Iowa 1,153 N.W. 146
• Decision Date: 23 June 1915
• Docket Number: No. 30354.,30354.
• Parties: STATE v. PERKINS.
• Court: United States State Supreme Court of Iowa

171 Iowa 1

153 N.W. 146

STATE

v.PERKINS.

No. 30354.

Supreme Court of Iowa.

June 23, 1915.

Appeal from District Court, Mills County; A. B. Thornell, Judge.

Defendant was indicted for the crime of rape. Upon trial to a jury he was convicted of an assault with intent to commit rape, and appeals. Reversed and remanded.Genung & Genung and W. S. Lewis, all of Glenwood, for appellant.

Geo. Cosson, Atty. Gen., and Wiley S. Rankin, special counsel, of Des Moines, for the State.

DEEMER, C. J.

The indictment charges the crime of rape with force and arms and the making of an assault upon the prosecutrix, Bessie Irene Miller; and the sole question raised by the appeal relates to the failure of the trial court to charge that assault and battery was an included offense of which defendant might be convicted. The indictment was broad enough to cover this offense, and the testimony tended to show not only an assault, but an actual battery.

In these circumstances the trial court should have instructed upon the included offense, and left it to the jury to say whether or not the defendant should have been convicted of this offense, rather than some higher degree of crime. State v. Kyne, 86 Iowa, 616, 53 N. W. 420;State v. Hutchinson, 95 Iowa, 566, 64 N. W. 610;State v. Barkely, 129 Iowa, 484, 105 N. W. 506;State v. Egbert, 125 Iowa, 443, 101 N. W. 191;State v. Trusty, 118 Iowa, 498, 92 N. W. 677;State v. Harrison, 149 N. W. 452.

Neither the fact that defendant was convicted of an assault with intent, nor that the court did instruct as to simple assault, obviates the error in failing to instruct as to assault and battery. This is pointed in the authorities already cited.

To avoid misapprehension, it is to be observed, that the prosecutrix was over the age of consent; she being 20 years of age.

For the error pointed out, the judgment must be, and it is, reversed, and the cause remanded.

Reversed and remanded.

LADD, GAYNOR, and SALINGER, JJ., concurring.