State v. Price

• Decision Date: 12 April 1905
• Citation: 103 N.W. 195,127 Iowa 301
• Parties: STATE OF IOWA, Appellee, v. GEORGE H. PRICE, Appellant
• Court: Iowa Supreme Court

103 N.W. 195

127 Iowa 301

STATE OF IOWA, Appellee, v. GEORGE H. PRICE, Appellant

Supreme Court of Iowa, Des Moines

April 12, 1905

Appeal from Ringgold District Court.--HON. R. L. PARRISH, Judge.

DEFENDANT was indicted, tried, and convicted of the crime of incest and from the judgment against him appeals.

Reversed.

Spence & Smith and C. W. Hoffman, for appellant.

Charles W. Mullan, Attorney-General, Lawrence De Graff, Assistant Attorney-General, and F. F. Fuller, County Attorney, for the State.

DEEMER J. MCCLAIN, J., SHERWIN, C. J., (dissenting).

OPINION

DEEMER, J.

On April 24, 1902, the grand jury of Ringgold county for the April term of the district court held therein returned two indictments against the defendant; one for the crime of rape, and the other for incest. In each defendant was charged with having had intercourse with one Gertie Blackmore, a stepdaughter, who was under the age of fifteen years. The charge of rape was first tried to a jury, resulting in a verdict of not guilty. Thereupon defendant was placed upon trial for incest. To the indictment for that offense he pleaded not guilty, and also pleaded his former acquittal of the charge of rape as a bar to the charge of incest and as an adjudication that he was not guilty of incest. A demurrer to this plea was interposed by the State, which was submitted and sustained. Defendant also offered in evidence on the trial of this case, which was for incest, the record of the proceedings in the rape case; objection to which was sustained by the trial court. After the evidence was all adduced, the jury in this case was instructed that defendant must be convicted, if at all, for an act of sexual intercourse which took place on or after November 12, 1901, thereby excluding from the consideration of the jury any act of intercourse which occurred prior to that date. Each indictment charged that the offense named therein was committed on the 1st day of the preceding October. On the trial for rape the State was permitted to prove all acts of intercourse covering the entire period included within the indictment; but at the conclusion of the evidence it was compelled to and did elect to rely upon an act of intercourse said to have been committed on or about October 28th. Upon the trial of this case the State was also permitted to prove various acts of sexual intercourse with the prosecutrix, but at the conclusion of its evidence on motion of the defendant it elected to rely upon an act occurring November 12, 1901.

In one of its rulings on the introduction of testimony the trial court said: "In this case the State has selected the 12th of November, another date. The court is of the opinion that, even if it should be held that the indictment for rape includes the crime of incest, that this is a prosecution for another and distinct act of sexual intercourse from what the prosecution was based upon in the other case. Taking in view of the fact the State elected before to depend upon the date of October 28th, * * * and in view of the fact that the State now depends upon an entirely different date, the objection is sustained." In various other ways defendant raised the question of former acquittal, and the point now presented for decision is, was the plea of former acquittal sustained? As the prosecutrix was under the age of consent, it is conceded that the same testimony would have supported either charge, and that the indictments covered the same periods of time. The verdict of acquittal in the rape case was necessarily a finding that defendant had not had intercourse with the prosecutrix at any time during the period covered by the indictment. True, rape is not a continuing offense, but under a general charge, such as was made in this case, all acts of illegal commerce within the period of the statute of limitations might be shown; and in such cases a general verdict of acquittal is an acquittal of all. State v. Parish, 104 N.C. 679 (10 S.E. 457); Proper v. State, 85 Wis. 615 (55 N.W. 1035). But it is said that, as the State elected in the rape case to rely upon one date, and in the incest case upon another, these rules do not apply, and there was no former acquittal, nor was the defendant in jeopardy in the rape trial for any other act of intercourse than the one relied upon by the State, to-wit, the one occurring on October 28th. This is a virtual concession that the doctrine of former acquittal applies, but that it only applies when the State relies upon the same and identical transactions. The concession is manifestly sound, but the qualification is not, unless all rules with reference to jeopardy are misapplied or misunderstood. A few suggestions will dispose of the fallacy involved in this contention. Suppose, after the jury had been impaneled and sworn in the rape case, and before the State had been compelled to make an election, the court had improperly directed a verdict for defendant, or had done any other act which would have entitled the defendant to a discharge, would it be contended that the defendant had not been in jeopardy as to every act or offense included within the statute of limitations? Could the State upon another trial, or upon the return of another indictment, covering the same period of time, successfully contend that, as it had made no election, there was no jeopardy as to any offense? Could it say that it intended, if called upon to make an election, to select one act, and that the second trial or the second indictment was for another? Manifestly, each of these propositions must be answered in the negative. What difference, then, does it make that upon the trial of the rape case the State did elect to rely upon a certain transaction or a certain date? None, as we think.

It must be remembered that in actions of this kind the State may prove as a part of its case every act of sexual intercourse between the parties within the period of the statute of limitations; and every act so proved would undoubtedly, under the conceded facts in this case, have constituted both incest and rape. When compelled to elect, the State undoubtedly chose that act which it had the most evidence to sustain; and the verdict in the rape case was surely an acquittal of all acts which would constitute rape committed within the period covered by the indictment. That is to say, it was, in effect, a finding that the defendant had not had intercourse with the girl at any time within the period of time covered by the two indictments. State v. Stone, 75 Iowa 215. But for a statute which prohibits the charging of two separate offenses in the same indictment, the crime of rape may be charged in one count of an indictment and the crime of incest in another. Porath v. State, 90 Wis. 527 (63 N.W. 1061, 48 Am. St. Rep. 954); Com. v. Parker, 146 Pa. 343 (23 A. 323); Com. v. Goodhue, 43 Mass. 193, 2 Metc. 193; Com. v. Squires, 97 Mass. 59. So also, may fornification and rape be joined. Jackson v. State, 91 Wis. 253 (64 N.W. 838). This being true, it follows, we think, that an acquittal in such a case is an acquittal of both offenses during the period covered by the indictment. The mere fact that these offenses cannot now be joined in this State under our criminal procedure does not change the rule as to the effect of an acquittal. In State v. Thomas, 53 Iowa 214, 4 N.W. 908, it was held by a divided court that rape and incest cannot be charged in the same indictment; or, more properly speaking, that the crimes charged in that particular case could not be joined. The soundness of the argument used in that opinion was challenged in State v. Hurd, 101 Iowa 391, 70 N.W. 613, and in the latter case it is expressly held that incest was there included in the crime of rape, and that upon a trial for incest proof of rape upon the prosecutrix might be given. See pages 402, 403 of 101 Iowa. See also State v. Kouhns, 103 Iowa 720, 73 N.W. 353.

In the absence of statute, it is the general, if not the universal rule that to sustain a plea of former acquittal it need not be shown that the offenses are the same. The test sustained by all the authorities is whether or not, if what is set out in the second indictment had been proved under the first there could have been a conviction. When there could, the second cannot be maintained; when there could not, it may be. Or, putting it in another way, and in the manner in which it is usually stated the test is whether the first indictment was such that the accused might lawfully have been convicted under it, on proof of the same facts as those by which the second is to be sustained. State v. Stone, 75 Iowa 215; U. S. v. Nickerson, 58 U.S. 204, 17 How. 204 (15 L.Ed. 219); Dill v. People, 19 Colo. 469 (36 P. 229, 41 Am. St. Rep. 254); Wilson v. State, 24 Conn. 57; Roberts v. State, 14 Ga. 8 (58 Am. Dec. 528); Smith v. State, 85 Ind. 553; State v. Keogh, 13 La.Ann. 243; Com. v. Roby, 29 Mass. 496, 12 Pick. 496; Rocco v. State, 37 Miss. 357; State v. Jesse, 20 N.C. 95; Price v. State, 19 Ohio 423; Parchman v. State, 2 Tex. Ct. App. 228 (28 Am. Rep. 435); State v. Waterman, 87 Iowa 255, 54 N.W. 359. In State v. Hurd, supra, it is squarely held that the same testimony may support the charge of either incest or rape; and, if the indictments cover the same period of time, it is clear that an acquittal of one is an acquittal of the other. In State v. Mikesell, 70 Iowa 176, 30 N.W. 474, it is held that a former acquittal of the charge of larceny is a bar to a prosecution for robbery for the taking of the same money. Here the charges are not the same, but, as said in the opinion: "The acquittal on the former charge then is a judicial determination that he was not guilty of the larceny charged in that indictment, which is the same property that is described in the...