State v. Pilkington

• Decision Date: 12 October 1894
• Citation: 60 N.W. 502,92 Iowa 92
• Parties: STATE v. PILKINGTON.
• Court: Iowa Supreme Court

92 Iowa 92

60 N.W. 502

STATE

v.PILKINGTON.

Supreme Court of Iowa.

Oct. 12, 1894.

Appeal from district court, Lucas county; W. I. Babb, Judge.

Defendant was charged with having, on the 23d day of February, 1893, committed a rape upon Ella Shelton, a female over 13 years of age. He was convicted of an assault with intent to commit a rape, and moved for a new trial, on the ground that the verdict was against the evidence and contrary to law, and because of misconduct of the county attorney. This motion was overruled, and judgment of imprisonment in the penitentiary entered against him, from which he appeals, assigning as errors the overruling of said motion.Mitchell & Penick, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

GIVEN, J.

1. New trials are granted in civil cases when “the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.” Code, § 2837. They are granted in criminal cases “when the verdict is contrary to law or evidence.” Id. § 4489. The rule in criminal cases is different from that applied in civil cases. “This court, though proceeding carefully and cautiously, will interfere in criminal cases more readily than in civil. We will not, in a criminal case, support a verdict if it be against the clear weight of the evidence.” State v. Wise, 83 Iowa, 597, 50 N. W. 59, and cases therein cited. Guided by this rule, we inquire whether the evidence supports the verdict. Defendant drove a buggy carrying the mail between Chariton and Columbia, a distance of about 20 miles. On a Wednesday afternoon, in February, 1893, Ella Shelton, a resident of Chariton, then a few months over 16 years of age, rode with the defendant from Chariton to Columbia. On the following Friday night, she rode with him from Columbia to Chariton, and on the way they had sexual intercourse twice. It is upon these acts of intercourse that the charge is based. The jury must have failed to find that the sexual intercourse was against the will of the prosecutrix, or it would have convicted of rape. This conclusion of the jury is not complained of, and we accept it as true that the state failed to show a want of consent; indeed, such is our view of the testimony. It does not follow, however, that the defendant may not have been guilty as found by the jury. “If, before the consent was given, it appears that defendant used such force as to evince an intention to commit a rape, the defendant may be convicted of an assault with intent to commit a rape.” State v. Atherton, 50 Iowa, 189;State v. Cross, 12 Iowa, 67.

We have the single question whether the evidence warrants the finding that the defendant assaulted Ella Shelton with intent to ravish and carnally know her, by force and against her will. It is not a question whether the defendant's conduct towards this young girl is to be condemned. There is no doubt but that his acts were with the intent and purpose of having sexual intercourse with her, and are without any justification whatever; but did he intend to accomplish his purpose by force and against her will? is the question before us. Ella Shelton, though young, was evidently a wayward and rather evil-minded girl. Her reputation for chastity was the subject of proof, and, to say the least of it, showed her to be of questionable standing. It does not appear what the previous acquaintance of these parties had been, but we infer from her statements that it was limited; nor does it appear that the defendant did anything to induce her to ride with him on either occasion. Ella's sister asked defendant to tell Ella to come home, and on his return to Columbia, Friday evening, he told her so. On his arrival that evening, Mr. Wilson, at whose house Ella was visiting, asked the defendant to go back to Chariton that night, and send a doctor, as Mrs. Wilson was sick and growing worse, which defendant consented to do, as he could take the mail then as well as in the morning. Mr. Wilson testifies that Ella asked the defendant to take her back; that defendant asked her if it was not too late for her to go, and she said she was obliged to go. It is certainly clear that the...