(dissenting).
I respectfully dissent.
When a sound theory based on what was logical when stated leads to. a result that is unrealistic and factually without support it should be reexamined.
I agree with what is said by the majority except for the conclusion in Division I that the case should be reversed. The majority notes that the details of the crime are shocking. Indeed they are loathesome and it appears without dispute the unfortunate victim was cruelly and sadistically abused. No one questions the sufficiency of the evidence to convict. The State’s evidence is overwhelming. There is not a word of testimony or a scintilla of evidence contrary to that offered by the state. No one denied a single element necessary to establish the offense charged except by defendant’s formal plea of not guilty.
Defendant, testifying in his own behalf, claimed he could not remember. If that was a defense to the offense charged it was equally so to any included offenses and defendant should have been found not guilty. Defendant’s claimed loss of memory did not relieve the state from its burden of proving defendant’s guilt. Nor did it relieve the jury from its duty to find defendant guilty, of the offense charged if it was convinced beyond a reasonable doubt of his guilt. The jury did so find. I do not think we should hold the jurors might have been derelict in their duty and unresponsive to their oaths of office if included offenses had been submitted for their consideration. Neither the rights of the defendant nor the demands of justice require any such speculation on our part.
That the essential elements incident to assault with intent to commit rape, assault and battery and assault are present in rape by force is not debatable. This should not mean that in a case such as ours the jury should be turned loose in a field of multiple choice speculation.
I agree that in most cases the included offenses should be submitted. Our own cases and a majority of jurisdictions so hold. However, there should be and are exceptions to the general rule and I think this is one of them.
In State v. Hoaglin, 207 Iowa 744, 223 N.W. 548, cited by the majority, defendant was charged with “statutory” rape. He was convicted of assault with intent to commit rape and the opinion necessarily discusses what was included in the offense for which he was convicted. On page 748 of 207 Iowa, page 550 of 223 N.W., this appears:
“Therefore, the charge of ‘rape’ * * * must necessarily include assault with intent to commit rape.” I agree but the real substance of the holding appears on *639page 754, page 552 of 223 N.W. in these words:
“Much of the confusion in our previous cases has arisen from a failure to distinguish between the abstract question of what is an included offense in the charge of rape and the question of when included offenses should, under the evidence in the case, be submitted. When an indictment or county attorney’s information charges a defendant with the crime of rape (statutory or otherwise), it also charges him with the included offenses, to wit: Assault with intent to commit rape, assault and battery, and simple assault. As to whether or not the court should submit any one or more of these included offenses depends wholly upon the evidence.”
In State v. Blair, 209 Iowa 229, 223 N.W. 554 defendant was charged with rape and convicted of assault with intent to commit rape. He complained because the included offense was submitted. The nub of the holding appears in these words:
“Nevertheless, it remains true that there is sufficient evidence of the commission of the crime of assault with intent, and the case is within the rule that defendant may not complain of conviction of a crime of a lesser degree than that which the evidence requires or warrants.” (loc. cit. 233, 223 N.W. loc. cit. 557.)
I would also emphasize these words in State v. Hoel, 238 Iowa 130, 132, 25 N.W. 2d 853, 854, cited and quoted by the majority: “whether the court should submit any one or more of these included offenses depends wholly upon the evidence * * The opinion should also be considered in the light of these words therein: “A failure to instruct as to an included offense is not error where, as here, all the evidence shows the defendant guilty of the higher offense or not guilty of either offense.”
In State v. Kramer, 252 Iowa 916, 920, 109 N.W.2d 18, 20, it is said, as emphasized by the majority, that the jury “might believe all of the state’s case, or none of it, or only part of it.” That statement was particularly applicable to that case but it is not necessarily applicable here. In that case there were eye witnesses to the assault and struggle between defendant and prosecuting witness. Defendant complained because included offenses were submitted. His complaint was without merit. There was ample evidence to convict of assault with intent to commit rape without reliance upon the testimony of prosecutrix. The jury could find as it did and give little or no credence to her version. This finds support in these words from the opening paragraph: “The trouble with some cases is the people who figure in them. * * * On the record it must be said that neither party came out of the encounter with any added reputation for virtue or seemly behavior, or with any increased odor of roses observable.” (loc. cit. page 917 of 252 Iowa, page 18 of 109 N.W.2d.)
We have no comparable situation here. I think this is the rare case referred to in State v. Hoel, supra, where under the evidence submission of included offenses was not required.
The problem of what included offenses must be submitted to the jury is not peculiar to our state. This able analysis of the problem appears in People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551:
“It has been repeatedly written that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense. (Citations) * * * Consequently, although originally ‘intended merely to prevent the prosecution from failing where some element of the crime charged was not made out’, (Citations) the doctrine * * * redounds to the benefit of defendants as well, since its effect actually is to empower the jury ‘to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence.’ * * *
*640“That does not mean, however, that trial courts must instruct on lesser degrees or included crimes and submit them in every case, for it is recognized that this mercy-dispensing power is a thing apart from the true duty imposed upon a jury; that it is, rather, an inevitable consequence of the jury system. (Citations) As to the jury’s proper function or duty, that consists solely of applying the legal definitions of crime, as laid down by the trial court, to the evidence and of convicting of the crime charged, if that is established beyond a reasonable doubt. (Citations)
“It follows, from what has been said, that, while the jury has the power to refuse to find any fact regardless of how clearly it may appear to a judge to have been proved, the jury does not, so to speak, have the right to find a fact and then refuse to render the verdict which such a finding necessarily requires. As is manifest, merciful, or weak jurors may disregard even overwhelming proof of culpability and acquit entirely or convict of a lower crime than the evidence reflects. But that, it has been correctly observed, is ‘their responsibility, and not the court’s.’ (Citation) There is probably no way to prevent or guard against this, but certainly a court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict. Or, to express the matter in somewhat different terms, the jury's power to dispense mercy, by favoring the defendant despite the evidence, should not be allowed so to dominate the trial proceedings as to impede or interfere with the jury’s primary fact-finding function.
“The principle has, accordingly, evolved that the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one. * * * The submission in such a case performs a function useful to the defendant and intelligible to the jury. The trial court may not however, permit the jury to choose between the crime charged and some lesser offense where the evidence essential to support a verdict of guilt of the latter necessarily proves guilt of the greater crime as well. With the record in that state, there is no basis in the evidence for differentiating between the several offenses and no warrant for submitting any but that charged in the indictment.”
State of Arizona v. Musgrove, 2 Ariz. App. 505, 410 P.2d 127 (1966) followed Mussenden and says:
“The submission of a lower offense is justified only when the evidence on some basis would support a finding that the defendant is innocent of the higher offense and guilty of the lower. People v. Brady, 16 N.Y.2d 186, 264 N.Y.S.2d 361, 211 N.E. 2d 815, 816 (1965); People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551, 554 (1955). As stated in Mussenden, supra:
‘ * * * but certainly a court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict.’ ”
Some jurisdictions hold that submission of included offenses is not required unless requested by defendant. See State v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266.
A somewhat different approach to the problem appears in the dissenting opinion of Mr. Justice Fortas in Cichos v. State of Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175. Petitioner had been charged with reckless homicide and involuntary manslaughter and convicted of the lesser offense. A new trial was granted and he was retried on the original charges and again convicted of the lesser offense. The question before the court was the claim *641of double jeopardy. The real issue was not met and the writ of certiorari was dismissed. In dissenting and commenting on the submission of separate offenses Justice Fortas said it “gave the prosecution the advantage of offering the jury a choice — a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence.”
Many articles have been written on the subject. A note and comprehensive analysis entitled “Submission of Lesser Crimes” appears in 56 Columbia Law Review 888. Various procedures are discussed. Beginning on page 900 this appears:
“4. Submission left to the court’s discretion. This practice, perhaps the soundest, means that regardless of the existence or nature of requests or objections of prosecution or defense, the appellate court will reverse only for error in instructing or failing to instruct on a lesser offense amounting to an abuse of discretion. It recognizes the obvious fact that the trial judge, witnessing the live proceedings, may have better grounds for judgment than a cold record affords an appellate court. It also avoids to a considerable extent the great difficulty in instructing juries occasioned by inflexible appellate rules.” And the note concludes:
“While any criterion for sufficiency of the evidence must rest on the particular jurisdiction’s view of the relative functions of judge and jury, it is submitted that the trial judge should possess broad discretion in his handling of lesser offenses, subject to reversal for prejudicial abuse. Such an approach would retain the advantage of the included crimes concept while discarding the procedural difficulties which have arisen to impede its operation.”
I am willing to agree that in most cases included offenses should be submitted but to require it in all cases is to carry a good rule to an unrealistic conclusion. Some discretion should be left to the trial court. Where as here there is no actual conflict in the evidence I do no think our appellate review requires reversal.
I would affirm.