State v. Whimpey , 140 Iowa 199 ( 1908 )

Ladd, O. J.

— Appellant challenges the sufficiency of the evidence to sustain the verdict. It is enough to say, without rehearsing the details, that its evidence fully supports the finding of the jury.

Exception is taken to the fifth instruction, in that the jurors are told, without explanation, that, unless prosecutrix “be corroborated by other evidence tending to connect tbe defendant with the commission of the offense,” he should be acquitted. This is in the language of' the statute, and it is doubtful whether any definition of what is meant could aid the comprehension. The items of evidence which might be considered as bearing thereon were enumerated, and the jury cautioned that it would be enough if the corroborating evidence “tends to strengthen land corroborate the prosecutrix in connecting the defendant with the commission of the offense, and point out the defendant as the person who committed the offense, if any was committed.” This indicated precisely the thought counsel insists should have been incorporated in the charge, namely, that the corroboration contemplated by the statute is that which “tends tq single out and identify the defendant as the perpetrator of the crime charged.” See State v. Waters, 132 Iowa, 481; State v. Baker, 106 Iowa, 99; State v. Norris, 122 Iowa, 154; State v. Stevens, 133 Iowa, 684.

The ninth instruction is criticised as not exacting the utmost resistance on the part of the female. The jurors were instructed that, in order to convict, they “must be satisfied from the evidence, beyond a reasonable doubt, that be had carnal knowledge of the said Rachael Gross forcibly and against her will, and that she did not yield her consent during any part of the act. To constitute the crime of rape, the will of the female alleged to have been outraged must have been overcome by force. If she consents in the least during any part of the act, there is not such an opposing will as the law requires to convict on the charge of rape.” This was a correct statement of the law, and as full as the facts of the case required. Had a more specific reference to the evidence been desired, an instruction should have been requested.

It is said, however, that, as prosecutrix was a strong woman, it should have appeared in resisting that she employed “her hands, body, legs, and other ordinary means of reprisal to repel the assault, and protect her honor.” The means one person would employ in repelling a sudden and lecherous assault might not occur to another. Much necessarily depends on the nature of the attack, and to what extent the ability to defend is paralyzed by fear. If the evidence is sufficient to show that sexual intercourse was had entirely against the will of the female and accomplished by force, this is all that is required to constitute the crime of rape. The circumstances of this case were such that the jury might well have found that prosetrix resisted as well as she knew, and at no time yielded her assent.

Lastly, appellant contends that the sentence was excessive, and counsel at bar made an eloquent plea for its modification. Upon examination of the entire record, we are inclined to think' the point well taken, and therefore the judgment will be reduced from thirty years to twenty years in the penitentiary. As, so modified, the judgment is affirmed. — Modified and affirmed.