
    State of Iowa, Appellee, v. Andrew Spears, Appellant.
    1 Rape: excessive punishment. In a prosecution for rape on a girl under fifteen years of age, the evidence is-reviewed and held that, in view of the girl’s consent and the fact that the defendant was of immature years, a sentence of fifteen years is held excessive.
    
      Appeal from Greene District Qowrt.— IIon. Z. A. Church, Judge.
    Tuesday, April 3, 1906.
    Ti-ie defendant was indicted for the crime of rape. Upon his plea of guilty he was sentenced to the penitentiary for the period of 15 years, and he appeals.
    
      Modified and affirmed.
    
    
      Howard & Howard, for appellant.
    
      O. W. Mullan; Attorney-General, and Lawrence De Graff, Assistant Attorney-General, for the State.
   Bishop, J.

Appellant complains only that the term of sentence was excessive. . In fixing the term, the court considered the evidence taken before the committing magistrate and the grand jury, and such evidence was made part of the record by bill of exceptions, and is before us on this appeal. Therefrom it appears that the girl upon whom the crime was committed was under the age of fifteen. She is the daughter of a farmer living near the town of Dana, in Greene county, and at the time in question.was at work in Dana as a servant girl. The defendant is a young man, and his home was at Dana. Before the night of the crime the girl and defendant had met but once, and then only to speak to each other. On the night in question, defend-. ant asked the girl to take a buggy ride, and she went with him. ’ They drove a short distance into the country, and before their return an act of sexual intercourse had taken place, and this was followed by a similar act at a schoolhouse after they returned to town. On both occasions the act was consented to by the girl upon simple request and without any resistance. It is evident that she went with defendant expecting that sexual intercourse would be proposed, and, looking at the fact situation simply, it is evident that the acts were no more the procurement of defendant than of herself. It further appears that a few days later defendant proposed to the girl that they take a trip to the neighboring town of Gowrie, and to this she consented. TJpon their arrival at Gowrie they were arrested and taken back to Dana. Nothing appears as to the previous history of either of the parties.

The statute designates as rape in any event an act of sexual intercourse with a 'girl under the age of fifteen years, and this is because the law regards a girl of such a tender age incapable of consent. We are in no doubt as to the wisdom of the law. And we. are not disposed to lenieney in favor of one confessedly guilty of an offense under the law. In such cases we yield consideration to but one question, and that is whether excessive punishment within the meaning of the Constitution has been inflicted? As we have seen, these parties were country boy and country girl. Enough appears to make it probable that she was younger than her appearance would indicate. So, too, from the circumstances, it is fair to conclude that by her conduct she invited the proposal, and in the light of human experience it is not passing strange that he accepted it. This, of course, does not excuse, but it may serve to extenuate in some degree. At least, the case in its enormity is not to be compared with the crime when accomplished by means of arts or wiles, or other matters of inducement, and particularly where the offender is a man of mature age. In the case of a boy and girl who simply yield to the passions with which they are endowed by nature, a proper solicitude for the girl does not require that the judgment upon the boy shall be untempered with mercy. True, the punishment should be sufficiently severe to satisfy the vengeance of the law, and to serve as a warning to others, yet the boy should be given a chance to redeem himself from the wrong he has done. Holding these views, we cannot escape the conclusion that the sentence imposed upon this defendant is excessive, and we conclude that it should be reduced from fifteen years to five years. As thus modified, the judgment will be affirmed. — ■Modified and affirmed.  