
    The State v. Peters.
    1. Criminal Law: indictment for rape included crimes. An indictment for rape includes the crime of assault with intent to commit rape, and that of simple assault, and an instruction which precludes the jury from convicting of the latter crime under such an indictment is erroneous.
    
      Appeal from, IÁrm District Court
    
    Saturday, June 11.
    The defendant was indicted for a rape on Louise Haber-man. He was tried, convicted of an assault with intent to commit a rape, and sentenced to tbe penitentiary for two years and six months. He appeals.
    
      Blalce & JELormel, for tbe appellant.
    
      Smith McPherson, Attorney General, for tbe State.
   Day J.

Tbe defendant, as a witness upon the trial, admitted that be bad sexual intercourse with tbe prosecuting witness, at tbe time named' in tbe indictment, but claimed that tbe intercourse was with her consent. In finding tbe defendant guilty of an assault with intent. to commit a rape, tbe jury must have found that tbe evidence did not show that tbe intercourse was against tbe will of tbe prosecutrix. Tbe court instructed tbe jury that, if tbe evidence failed to satisfy them that tbe defendant committed tbe crime of rape charged in tbe indicment, they might, if warranted, find him guilty of an assault with intent to commit a rape, and that tbe form of their verdict would be guilty of rape, guilty of an assault with intent to commit a rape, or not guilty. Tbe jury were thus precluded from finding tbe defendant guilty of any lower grade of offense than an assault with intent to commit a rape. In State v. Vinsant, 49 Iowa, 241, it was held that, under an indictment for rape, a defendant may, if tbe evidence warrants it, be convicted of a simple assault, and that an instruction by implication precluding the jury from convicting of an assault is erroneous. The peculiar circumstances disclosed by the testimony in this case raise a very grave doubt whether the defendant committed the offense of which he has been convicted, and we think he must have been prejudiced by the instructions which authorized a conviction for no less grade of offense than that of assault with intent to commit a rape. See State v. Vinsant, supra.

Reversed.  