State v. Hromadko , 123 Iowa 665 ( 1904 )

Ladd, J.

The indictment avers that the defendant “did then and there take and lay hold of one Mary Hromadko, and with his hands bodily laid her, the said Mary Hromadko, upon a bed, with intention her, the said Mary Hromadko, then and there to. carnally know and defile. And the said Frank J. Hromadko did then and there unlawfully, and against her will, 'by force, menace, duress, compel her, the said-Mary Hromadko, to be defiled by then and there and in the manner aforesaid having sexual intercourse with and carnal knowledge of the said Mary Hromadko; contrary to and in violation of law.” Appellant insists that this fails to charge the crime of forcible defilement, in that it does not allege the taking to have been unlawful and against the woman’s will. The statute under which the indictment was returned reads: “If any person take any woman unlawfully and against her will, and by force, menace or duress compel her to marry him or any other person, or to be defiled, he shall be fined not exceeding $1,000 and imprisoned in the penitentiary not exceeding ten years. No person shall be convicted under 'the provisions of this section unless the evidence of the prosecuting witness be corroborated by other evidence, tending to connect the defendant with the commission of the crime.” It is to be noticed that the taking must be unlawful, and, second, against the woman’s will, and, third, that the defilement must be compelled by force, menace, or duress. “To take,” in the active sense, means “to lay hold of; seize with hands or otherwise”; and, as employed in this statute, “to obtain possession by force or artifice; to get the custody or control of; to.reduce to one’s power of will.” Under the statute such-taking is ¿s essential to constitute the crime as the defilement of the person. The indictment, while-it alleges the taking, wholly omits to charge that it was unlawful, or against the will of the prosecutrix. It leaves out two essential elements of the crime, but specifically charges the third. So far as the allegations of the indictment are-concerned, the prosecutrix may have been taken by her- request-. The offense, when the defilement consists in having sexual intercourse, closely resembles that of rape, defined in the statute to be the ravishment and carnal knowledge “of any female of the age of fifteen years or more by force and against her will.” Section 4156, Code. But it differs from rape in that there must be (1) an unlawful taking, and this (2) against the woman’s will, while in rape the matter of taking is not material, and need not be alleged. Again, to constitute rape, carnal knowledge is essential, while any defilement of the 'person would be sufficient under the statute quoted. Moreover, the same strictness in the proof with respect to the exertion of force, menace, or duress and absence of acquiescence, as. in the crime of rape, is not required. Pollard v. State, 2 Iowa, 567; State v. Montgomery, 79 Iowa, 737; State v. Fernald, 88 Iowa, 553. In the last case the necessity of proof of an unlawful taking against the will was recognized. The same is true of Beyer v. People, 86 N. Y. 369. Krambiel v. Commonwealth, 84 Ky. 685 (2 S. W. Rep. 555), is precisely in point.

The statute is somewhat analogous to those of different states denouncing abduction, usually defined as tire unlawful •taking, against the will, for an immoral purpose. In forcible, or, as it is sometimes denominated, compulsory, defilement, there must be the same kind of taking, and the actual defilement is substituted for the intent to do wrong. In abduction the taking is the essence of the offense, and there is no ground for eliminating it from this statute, nor saying that it may not be of a kind (unlawful, and against the woman’s will) included in the,definition of the crime for which defendant was put on trial. The indictment may have charged the commission of rape, but the trial was not for that offense. Not only did the indictment omit essential elements of the crime, but these were entirely ignored in the instraetions to the jury. The cause is reversed, and remanded for such action as may be appropriate in the district court.— Reversed. -