State v. Pilcher

• Citation: 158 N.W.2d 631
• Decision Date: 07 May 1968
• Docket Number: No. 52702,52702
• Parties: STATE of Iowa, Appellee, v. Ronald Dean PILCHER, Appellant.
• Court: United States State Supreme Court of Iowa

Page 631

158 N.W.2d 631

STATE of Iowa, Appellee, v. Ronald Dean PILCHER, Appellant.

No. 52702.

Supreme Court of Iowa.

May 7, 1968.

Life, Davis & Life, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Ray Fenton, County Atty., Des Moines, for appellee.

LeGRAND, Justice.

Fortunately we need not recite at length the shocking details of this crime. It occurred on the morning of December 16, 1966. Complaining witness was then working at the Hideout Lounge, a tavern owned by her sister. Defendant, having finished work on the night shift at the John Deere Works, stopped at the tavern, had several bottles of beer and robbed the complaining witness of the tavern proceeds at gunpoint. He then compelled her to accompany him to a secluded spot in or near Des Moines where by force, and against her will, he had sexual intercourse with her. There is dispute about some of the above facts but we state them in the manner most favorable to the State for the purpose of this appeal.

We refer to other specific factual circumstances later as our discussion of the assigned errors requires.

Defendant was charged with, tried for, and convicted of violating section 698.1, Code, 1966, which provides in part, 'If any person ravish and carnally know any female by force or against her will * * * he shall be imprisoned in the penitentiary for life, or any term of years, not less than five * * *'

Defendant appeals from the judgment on his conviction sentencing him to 50 years in the penitentiary at Fort Madison, Iowa. He assigns five errors for our review. They are: (1) Failure of the trial court to submit the included offenses of assault with intent to commit rape, assault and battery and assault; (2) failure of the State to corroborate the testimony of complaining witness; (3) refusal of the trial court to permit impeachment of Officer Lewis' testimony; (4) failure of the trial court to instruct on specific intent and error in instructing on defendant's use of liquor and drugs; and (5) error in admitting the hearsay testimony of Dr. Schwartz.

I. Defendant asserts he was entitled to have the jury consider as included offenses assault with intent to commit rape, assault and battery, and assault. The court submitted only rape. Defendant raised this question by requesting an instruction thereon, by objecting to the instructions as given, and by motion for new trial.

We agree with defendant and hold he is entitled to a new trial for the trial court's failure to submit to the jury the three lesser offenses mentioned above as well as the principal crime charged in the indictment.

The general rule requires submission of all offenses which are necessarily included in the indictment and upon which there is sufficient evidence to justify a finding of guilt.

Authority for our conclusion here may well start with State v. Hoaglin, 207 Iowa 744, 223 N.W. 548, although many decisions antedating that case hold to the same effect. In the Hoaglin case we analyzed, distinguished and, where necessary, reconciled our previous opinions to reach what we there announced as the rule for submission of included offenses in a prosecution for rape. In Hoaglin we quoted with approval from State v. Brooks, 181 Iowa 874, 881, 165 N.W. 194, 197, as follows, '* * * We think the right rule is: Since a verdict may not be directed Against the defendant, and therefore an exclusion of an included offense is in a sense a direction For him, it is proper to rule that defendant shall not be put on trial for an included offense If it would be proper to direct a verdict of acquittal, were he charged with that offense alone.' (Emphasis added.)

In other words if here the only charge against defendant were assault with intent to commit rape, would he have been entitled to a directed verdict? The answer is obvious. This question meets the same negative answer when related to assault and battery and simple assault.

As we said in Hoaglin at page 751, of 207 Iowa Reports, page 551, of 223 N.W., 'If an information were filed against a defendant, charging him solely with assault and battery, which includes simple assault, and both of which offenses are included in the crime of rape, would the court under the evidence, be justified in directing a verdict for him? If yea, then said offenses included in the charge of rape need not be submitted to the jury. If nay, then the court is in error in failing to submit said offenses. If the court, under the evidence, would be justified in directing a verdict for either one of said offenses, then said offense need not be submitted.'

We held directly in Hoaglin that even statutory rape--which may be committed without force and with consent--includes assault with intent to commit rape, assault and battery, and simple assault. If this is true with reference to statutory rape, it is, of course, even more true when the rape must be committed by force and without consent. In Hoaglin at page 754, 223 N.W. at page 552 we said, 'When an indictment or county attorney's information charges a defendant with the crime of rape (statutory or otherwise), it also charges him with the included offenses, to wit: Assault with intent to commit rape, assault and battery, and simple assault. As to whether or not the court should submit any one or more of these included offenses depends wholly upon the evidence.' (Emphasis added.)

In the instant case the evidence is strong that defendant's acts, whatever they were, were accomplished by force. There is testimony that defendant threatened the prosecuting witness with a gun; that he struck her; that he threw her to the ground; that he pulled her hair; that he choked her; and that he twisted her arm. There is evidence that she was bruised and scratched. If the jury found sexual intercourse had taken place, it could well find from this evidence the other elements of rape were proven. It could also find, however, that although force had been used intending to commit rape, sexual intercourse had not taken place, in which event it could have found defendant guilty of assault with intent to commit rape. Or, if it found intercourse had not taken place and the force used had been without the intent to commit rape, it could have found defendant guilty of assault and battery. It could also have found an assault occurred, but no force had been used, no sexual intercourse had taken place and no intent to commit rape had been established.

The jury's determination depended entirely upon when, if at all, it ceased to believe the State's evidence. The error is that the trial court took this right from the jury and required the State's version to be believed or disbelieved in its entirety. We agree the record abounds with evidence of a completed rape but this is true only if complete credibility is accorded the State's witnesses.

The State argues defendant was guilty of rape or not guilty of any offense. The evidence, according to the State, overwhelmingly establishes this fact. Even if we concede it is highly unlikely the jury would have found any verdict except the one it did, defendant nevertheless was entitled to have the jury consider his guilt of a lesser crime.

This is true even if the State's evidence shows nothing except a completed rape. We considered this matter in State v. Kramer, 252 Iowa 916, 920, 109 N.W.2d 18, 20, where incidentally the defendant was objecting because included offenses Had been submitted. After his conviction of an included offense, he claimed the evidence either showed he was guilty of rape or he was not guilty of any crime. He predicated error on the submission of included offenses, and we disposed of his argument this way '* * * The defendant says if there was anything to submit it should have been rape only, without included offenses. His argument here is that the State's evidence showed, if it showed anything, a completed rape. At this point he cites authorities to the effect that when the evidence shows the defendant to be guilty either of the highest offense or none at all, included offenses need not be submitted; and he asserts it was error for the trial court to submit the included offense of which he was found guilty. It is necessary only to point out that the jury was the sole trier of the facts; it might believe all of the State's case, or none of it, or only part of it. If it chose not to believe the prosecuting witness and the police officer on the question of penetration, it had the right to do so. Equally, it had the right to believe the prosecutrix and Mrs. Redenbaugh as to the assault; and so believing, to bring in the verdict which it did. The proposition is self-evident and needs no further elaboration.' (Emphasis added.) Further support for this view may be found in State v. Blair, 209 Iowa 229, 233, 223 N.W. 554, 557. Here, too, it was the defendant who complained because of his conviction of assault with intent to commit rape, claiming that the evidence showed either a rape or no offense at all. We upheld that conviction and stated, 'If a consummated rape was perpetrated, there was necessarily an assault with intent to commit rape. The jury might find that the completed offense of rape was not consummated, and still find sufficient evidence of the assault.

'* * * The jury might well have found the defendant guilty of that crime (rape). Nevertheless it remains true that there is sufficient evidence of the commission of the crime of assault with intent * * *.'

We discussed this also in State v. Hoel, 238 Iowa 130, 132, 25 N.W.2d 853, 854, where we pointed out, 'Any apparent inconsistencies in some of our earlier decisions as to instructing upon included offenses, have been removed by our more recent holdings that a charge of statutory rape includes assault with intent to commit rape, assault and battery and simple assault, and that whether the court should permit any one or more of these included offenses depends...