The State v. Casford

• Decision Date: 21 December 1888
• Citation: 41 N.W. 32,76 Iowa 330
• Parties: THE STATE v. CASFORD
• Court: Iowa Supreme Court

41 N.W. 32

76 Iowa 330

THE STATE v. CASFORD

Supreme Court of Iowa, Des Moines

December 21, 1888

Decided October, 1888.

Appeal from Keokuk District Court.--HON. J. K. JOHNSON, Judge.

THE defendant was indicted, tried and convicted of the crime of rape, and he appeals.

AFFIRMED.

Mackey & Stockman, for appellant.

A. J Baker, Attorney General, for the State.

OPINION

ROTHROCK, J.

I.

The following is a copy of the material averments of the indictment: "The said Jennings Casford, at the county of Keokuk, and state of Iowa, on the seventeenth day of June, 1887, did with force and arms, at the county aforesaid, in and upon one Mary Jane Lewis, unlawfully wilfully and feloniously, make an assault, and did then and there ravish and carnally know the said Mary Jane Lewis, forcibly and against the will of said Mary Jane Lewis, the said Mary Jane Lewis then and there being a female over the age of ten years; contrary to and in violation of law." In motions for a new trial and in arrest of judgment one cause assigned was that the indictment did not charge the crime of rape, for the reason that it did not charge that the act was feloniously done. It will be observed that the charge is that the assault was "unlawfully, wilfully and feloniously made," but none of these words are repeated and specifically applied to the act by which the crime was consummated. But it was charged that the prosecutrix was ravished and carnally known by the defendant, forcibly and against her will. This constitutes the crime of rape. If the assault was felonious and the rape was accomplished at the time, the fact that the word "felonious" was not repeated, ought not to be held as a fatal objection to the indictment.

II. The age of the prosecuting witness was stated in the indictment to be over ten years. This was the age of consent fixed by section 3861 of the Code. By chapter 114, Laws Twenty-first General Assembly, the age of consent was changed to thirteen years. This last statute was in force when the alleged crime was committed. It will be observed that the indictment is in the form required where the female has passed the age of consent. The trial was had upon this theory. Evidence of non-consent was introduced, and the jury was charged that there could be no conviction unless the act was accomplished by force and against the will of the prosecutrix. It is claimed that this mistake in alleging that the prosecutrix was aged over ten years, instead of thirteen years, was a fatal defect in the indictment. In view of the charge made in the indictment and the record in the case, it cannot justly be said that this mistake in any manner prejudiced the defendant, It is true that counsel for the defendant have cited authorities which hold that these are fatal defects. But under section 4306 of the Code the authorities are not applicable to an indictment in this state. It is very plain that these defects did "not tend to the prejudice of the substantial rights of the defendant upon the merits."

III. The court charged the jury that under the indictment the defendant might be found guilty of a rape, an assault with intent to commit...