State v. McAvoy

35 N.W. 630, 73 Iowa 557

• Court: Supreme Court of Iowa
• Decided: December 19, 1887
• Status: Published

Opinion

Reed, J\

That part of the indictment which charges the offense is as follows: “ The said L. 0. McAvoy, on the 14th day of September, in the year of our Lord one thousand eight hundred and eighty-five, in the county aforesaid, did then and there feloniously, willfully, by force and violence, make an assault on one Martha I. J"arvis, • a female, with intent then and there to have carnal knowledge of, and sexual intercourse with, the said Martha I. Jarvis by force, and used violence against the will of the said Martha I. Jarvis.” The district court directed the jury that the evidence was not sufficient to warrant them in convicting the defendant of assault with intent to commit raj5e; but that, under the indictment, he might be found guilty of assault and battery. It is provided by statute (Code, § 4466) that the defendant in a criminal case may be convicted of any offense, the commission of which is necessarily included in that with which he is charged in the indictment. It was held by this court in State v. Graham, 52 Iowa, 720, that, while assault and battery is not necessarily included in the crime of assault with intent to commit murder, still, as it was charged in the indictment that the assault was accompanied with actual violence to the person of the one assaulted, the defendant was properly convicted of assault and battery. But the defendant can be convicted of an offense distinct from the one specifically charged in the indictment only when such offense is an essential element of that charged, or when it is shown by proper averment in the indictment that a minor offense was in fact included in the perpetration of the one charged. The crime of assault and battery is not necessarily included in an assault with intent to commit rape; for that offense might be committed without doing any actual violence to the person of the one assailed, although in the majority of cases, perhaps, an actual battery, is involved in the commission of the offense. To justify a conviction of assault and battery, then, on an indictment charging assault with intent to commit rape, it must be averred in the indictment that the attempt was accompanied by some actual violence to the person of the woman. The present indictment does not contain such averment, and the direction of the court that defendant might be found guilty of assault and battery is erroneous.

Reversed.