State v. Wolf
| Decision Date | 20 December 1900 |
| Citation | 84 N.W. 536,112 Iowa 458 |
| Parties | THE STATE OF IOWA v. ORRIS WOLF, LEAVITT WOLF, CHARLES ALLUM, Appellants |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--HON. A. R. DEWEY, Judge.
THE defendants were jointly indicted and tried for rape. They were convicted of assault with intent to commit rape, and from a judgment upon such conviction they appeal.
Reversed.
S. R Clute for appellants.
Milton Remley, Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.
Section 4399 of the Code of 1873 provided that, "when several defendants are tried together, they are not allowed to sever their challenges, but must join therein." This express language was not carried into the Code of 1897, and in the trial of this case the court refused the defendants separate peremptory challenges. It will be conceded, we think, that in the absence of statutory enactment changing the rule of the common law, each defendant tried jointly with others would be personally entitled to the full number of peremptory challenges fixed by law. Hence we must determine whether the Code of 1897 limits the number of challenges each of several defendants shall exercise. In this case, as in all cases where a felony is charged, each defendant was entitled to a separate trial as an absolute right. By exercising this right, he could avail himself of the full number of peremptory challenges provided by law. Failing to do this, he consents to have the trial proceed as if there were but one defendant. Section 5365 of the Code of 1897 fixes the number of peremptory challenges which the state and the defendant shall have in any given case, and the next preceding section (5364) provides that "peremptory challenges shall be exercised in the same manner as is provided in the trial of civil actions." In the Code of Civil Procedure it is provided, in section 3686 says, that the challenges shall be alternately exercised. And section 3678 says, "Where there are several parties plaintiffs or defendants, and no separate trial is allowed, they shall not several their challenges, but must join in them." Read together, we think these provisions of the Code of 1897 clearly indicate an intention on the part of the legislature to restrict the peremptory challenges in joint criminal trials to the number which a single defendant might exercise.
II. Talesmen were drawn for completing the jury, and, as they entered the court room, were called, without depositing their names in the jury box and drawing therefrom. There was no error in thus proceeding. The names had been drawn from the talesmen box, as required by the statute, and upon their appearance it was proper to use them without a second drawing from the regular panel box.
III. The testimony of several witnesses was admitted, over defendants' objections, showing admissions made by the defendant Orris Wolf after the alleged rape was committed. When objections were made to this testimony, the state expressly stated that nothing was claimed for it as against the defendants Leavitt Wolf and Charles Allum; and the court positively instructed the jury, in its charge, that it could not be considered against those defendants. The evidence was competent as to Orris Wolf, and the rights of his co-defendants were sufficiently guarded.
IV. No evidence was offered by the state tending to show that any complaint was made by the prosecutrix that a rape had been committed on her, or explaining why it was not made. Instructions were asked on this subject by the defendants, one of which, at least, announced a rule which has long been recognized by all the courts as proper in this class of cases. It called the jury's attention to the fact that a failure to make such complaint was a circumstance tending to discredit her story. These were refused, and the court, on its own motion, gave an instruction which was undoubtedly intended to cover the same ground, and which did partially do so; but, taken as a whole, it may have been construed by the jury as offering in itself an excuse for this failure on the part of the prosecuting witness, instead of giving in concise language the rules which were to guide them in considering that question. While we do not approve the instruction, we would hesitate to reverse on that alone.
V. There was evidence before the jury which, it was claimed, tended to show a conspiracy on the part of these defendants, and others, to ravish the prosecutrix. There was also evidence which, it was claimed, showed they were present at the time of the transaction, aiding and abetting therein. Instruction 5 given by the court covered the question of conspiracy and aiding and abetting, and the jury was told that if they found a pre-arrangement to commit the crime, and also found that the defendants participated therein, and were present and took part in carrying it out, they would be equally as guilty as the man who actually accomplished their joint object. This instruction, when carefully read, conveys to the legal mind the impression that it was intended to define the consequences following a conspiracy, and also those which flow from aiding and abetting the commission of a crime. It is undoubtedly true that one who conspires with another to do an unlawful act is equally as guilty as he who actually does the act, but it is not always true that one who aids and abets another is equally as guilty as the principal. The guilt of the former must be determined alone from the part he took in the transaction. State v. Smith, 100 Iowa 1, 69 N.W. 269; State v. Lee, 91 Iowa 499, 60 N.W. 119. In the instruction under consideration, the rule as to conspiracy and that as to aiding and abetting are so blended in the language used that the jury might well have been misled as to the court's meaning, and the defendants thereby have suffered prejudice. We are led to this conclusion the more readily for the reason that the next instruction given related to conspiracy alone, and was correct, indicating that the preceding instruction was intended to cover the question of aiding and abetting alone.
VI. The court did not specifically define the crime of assault with intent to commit rape, nor did it tell the jury in express terms what acts were necessary to constitute that crime. While we think it better to define distinct included offenses, we are of the opinion that the instruction given defining rape was so full that, taken in...
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