State v. Sheets

• Decision Date: 07 February 1905
• Citation: 102 N.W. 415,127 Iowa 73
• Parties: STATE v. SHEETS.
• Court: Iowa Supreme Court

127 Iowa 73

102 N.W. 415

STATE

v.SHEETS.

Supreme Court of Iowa.

Feb. 7, 1905.

Appeal from District Court, Lyon County; William Hutchinson, Judge.

The defendant was convicted of an assault with intent to commit rape, and appeals. Affirmed.W. D. Boise and W. H. Weber, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

SHERWIN, C. J.

The indictment charged that the assault was made on a female child 11 years of age “by force and against her will,” while the evidence conclusively showed that no force was in fact used, and the appellant contends that there was a fatal variance between the indictment and the proof. We have recently decided the point against the appellant's contention, and we need do no more in disposing of it than to call attention to the cases: State v. Scroggs, 123 Iowa, 649, 96 N. W. 723;State v. Anderson (Iowa) 101 N. W. 201.

The allegations of the indictment were insufficient to charge an assault and battery, yet the court submitted that question to the jury, and its action in so doing is assailed. This question was decided adversely to the appellant's contention in State v. Miller (Iowa) 100 N. W. 334. In that case, as in this, the defendant was convicted of the graver charge under an indictment which did not charge an assault and battery, and there was also an instruction submitting the latter offense to the jury; and, while holding that it was error to so charge in the absence of proper allegation in the indictment, we further held that the error was without prejudice, on account of the verdict. We think the rule a just one, and find no sufficient reason for receding therefrom.

There may be cases of this character where the question of an assault with intent to inflict a great bodily injury should be submitted to the jury, but in this case there was no evidence that would have justified the submission of that question. No intent to do a bodily injury, other than that which would naturally follow sexual intercourse with an immature child, was shown; and it is manifest that an injury caused alone by such intercourse would inhere in the graver crime charged, and not be a separate and distinct offense, for which a different punishment might be imposed.

Certain instructions are complained of on the ground that they assumed the truth of matters appearing in the record, and therefore invaded the province of the jury. If these instructions were to be considered alone, there would be merit in the appellant's complaint. But it is a familiar rule that instructions must be considered as a whole. It would be almost impossible for the court to embody the various propositions of law involved in a case in a single paragraph of its charge without exposing itself to the criticism of so confusing the law as to make it unintelligible to the jury; hence the necessity of considering the charge as a whole, and of reading and considering the several paragraphs thereof in the light of the others. Applying the rule to this case, and presuming that the jurors were of average intelligence, we find no serious cause for complaint. In other parts of the charge the jury was distinctly and correctly directed as to its duty, and as to the character and amount of evidence necessary to warrant a conviction, and we think it was not misled by any language used in the paragraphs complained of.

Paragraph 9 begins and is punctuated as follows: “You are instructed to convict the defendant, the state is confined to the day and time at the schoolhouse,” etc. It may readily be conceded that the construction of...