State v. Roby
| Decision Date | 21 June 1922 |
| Docket Number | 33630 |
| Citation | 188 N.W. 709,194 Iowa 1032 |
| Parties | STATE OF IOWA, Appellee, v. FRANK ROBY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 15, 1922.
Appeal from Madison District Court.--J. H. APPLEGATE, Judge.
DEFENDANT was charged with the crime of assault with intent to commit rape. A jury found him guilty, and he appeals.--Reversed.
Reversed and remanded.
John A Guiher, O. M. Slaymaker, and A. M. Miller, for appellant.
Ben J Gibson, Attorney General, Leo C. Percival, County Attorney, and W. S. Cooper, for appellee.
OPINION
1. The evidence is of such a character that, in the interests of decency, the details ought not to be stated. We shall attempt to cover the main points without stating the nauseating details. There is no conflict in the evidence. No evidence was offered on behalf of the defendant.
The prosecuting witness was 14 years of age, at the time of the transaction in question. We gather from the record that defendant was a married man, of middle age. It appears that, for a long time prior to the date of the alleged crime, defendant had been one of the friends of the Jeffries family, and had lived in the same neighborhood. The family consisted of the prosecuting witness, Joy Jeffries, and her father and mother, with whom defendant was on intimate terms, and in whose home he frequently visited. The father of prosecutrix died some two or three months prior to the alleged assault. For two or three years prior to the time of the act complained of, defendant had frequently accompanied prosecutrix to her home,--sometimes from choir practice, and occasionally from the post office and the business part of town. Defendant was the leader of the church choir. Plaintiff testifies that she does not now play the organ in the church choir, as she did formerly. On the occasions mentioned, defendant would embrace and kiss her, tell her that he loved her, and in other ways protest his affection for her. The assault is alleged to have taken place July 17, 1919. For two or three months, or such a matter prior thereto, defendant occasionally arranged meetings with Joy, in a clump of trees or bushes back of the garage located on the premises where Joy lived with her family. One witness refers to thick weeds at the point where she discovered defendant and prosecutrix at the time in question. On this particular day, Joy was alone at home, her mother being absent at some church meeting. Joy was sitting in a swing upon the lawn, when defendant appeared at the door of a lumber yard situated near her home, and pointed over towards the bushes above referred to, back of the house. Joy indicated that she understood his signal, and he followed a roundabout course to the clump of bushes, where she met him, and they sat down on a railroad tie next to the garage, and he put his arms around her. Defendant then got up and moved a little farther out of sight, Joy following him; and when they were concealed by the bunch of bushes or row of trees above referred to, defendant again put his arms around her, and drew her down. At this time, defendant was lying on his left side, and prosecutrix was lying with her head on his arm. Their faces and bodies were very close to each other: one witness says they were as close together as they could get. From this point on, the evidence discloses acts of familiarity by both, and a request by defendant. Without going into the details as to the touching of the person of prosecutrix, the evidence abundantly shows overt acts. While these things were going on, a neighbor lady, Mrs. Chaplin, discovered the two in the position described, and she testifies as to what she saw, and that she told defendant she was going to tell his wife, to which defendant made no reply. According to the testimony of the prosecutrix, defendant had, by a persistent course of love-making for a period of two years, gained her confidence, and on the occasion of the act complained of, assured her that he would not harm her.
The burden of appellant's contention has to do with certain instructions given by the trial court, and the sufficiency of the evidence to sustain the verdict. The prosecutrix, being under 15 years of age, could not, under our statute, consent to an assault with intent to commit rape. The trial court properly submitted to the jury, for its determination, the question of the guilt or innocence of the defendant only as to the charge in the indictment, to wit, an assault with intent to commit rape. Both nonconsent and force are essential ingredients of rape of a woman over the age of consent. Mere carnal knowledge of a girl under the age of consent is rape. It may be with or without her consent, and with or without the use of force; and if an indictment alleges force, in such a case, the allegation is mere surplusage. State v. Anderson, 125 Iowa 501, 101 N.W. 201. To sustain a charge of assault with intent to commit rape, the testimony must show that the act or acts of the accused constitute an assault, or that the act or acts of the accused, if done with the consent of the female, were acts to which she was, under the law, incapable of giving her consent. An assault necessarily includes an attempt. The ordinary definition of assault is that there must be an unlawful attempt or offer to apply force to another, with intent to do physical injury, and the present means to give it effect. State v. Lewis, 173 Iowa 643, 154 N.W. 432; State v. Jerome, 82 Iowa 749, 48 N.W. 722. All attempts to do physical violence are unlawful, unless permitted by law, and a person is not permitted by law to consent to unlawful assault. The individual cannot license crime, and the law violator cannot justify his criminal acts by virtue of anybody's permission. If a girl under 15 cannot consent to the consummated act, she cannot consent to any essential criminal part of it. In the charge made herein, it is not necessary to show force: that is, such force as is required where the female is over 15. Appellant's contention is substantially this: That, since an assault is an ingredient of the offense charged, the assault must be unlawful; and that, even though prosecutrix was under 15, she could lawfully consent to an assault,--that is, a simple assault, or assault and battery; that she could consent to the acts of the defendant, as disclosed by the record; and that, there being no unlawful assault, defendant cannot be convicted of assault with intent to commit rape. It is further contended by appellant that Joy Jeffries, being more than 13 years of age, although less than 15, had reached the age where she was capable of consenting to lewd and lascivious acts, under Section 4938-a, Code Supplement, 1913, and that such acts, made criminal and punishable under said section, are not related to and not included in the crime of rape or in the crime of assault with intent to commit rape, because the two offenses are distinct.
For the purposes of this case, it may be conceded that the offense described in the section of the Code last mentioned is a distinct offense, and not included in the offense charged in this case. The trial court so treated the matter, and did not instruct that the offense under the Code section just mentioned was included in assault with intent to rape. We think Section 4938-a has no bearing. The mere fact that the same act may constitute two different crimes is not controlling. Such a situation often occurs. The first contention is doubtless true, in the sense that, with a child even under 15, consenting to a simple assault, or an assault and battery, by a touching of the person, the defendant could not be convicted, under the indictment herein, as an included offense, of either simple assault or assault and battery. We are very clear, however, that an assault, or a touching of the person, coupled with the intent to have sexual connection, is an entirely different matter. The trial court gave the following instructions, among others:
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