I respectfully dissent from Division I of the foregoing opinion. I think the only logical conclusion to be drawn from our cases on statutory rape is that the court should have submitted to the jury the included offense of assault with intent to commit incest. Such offense is necessarily included within every charge of incest against a man where the prosecutrix is not an accomplice. This court is committed to the doctrine that incest may be committed without the consent of the other party. State v. Mentzer, 230 Iowa 804, 806, 298 N.W. 893, 894, and cases cited; State v. Rennick, 127 Iowa 294, 297, 103 N.W. 159, 4 Ann. Cas. 568; State v. Hurd, 101 Iowa 391, 394, 70 N.W. 613. A girl of eight, like the prosecutrix here, could not consent to the sexual act nor to an assault with intent to commit the act, and therefore could not be an accomplice. State v. Pelser, 182 Iowa 1,13, 163 N.W. 600; State v. Stalker, 169 Iowa 396, 400,151 N.W. 527, L.R.A. 1915E, 1222; State v. Sparks, 167 Iowa 746, 750,149 N.W. 871; State v. Roby, 194 Iowa 1032, 1040, 188 N.W. 709.
The majority says: "The definition of rape under the Code of 1939, section 12966, is: `If any person ravish and carnally know any female by force and against her will * * *.'" Immediately *Page 850 following the quoted portion of this section we find: "or if any person carnally know and abuse any female child under the age of sixteen years * * * he shall be imprisoned * * *." As we have previously pointed out, the statute does not use the word "rape." State v. Swolley, 215 Iowa 623, 625, 244 N.W. 844; State v. Hoaglin, 207 Iowa 744, 746, 223 N.W. 548. The majority has quoted the portion of the statute defining what is frequently called "common law rape" and omitted the definition of what is commonly termed "statutory rape."
Where a man has carnal knowledge of a female so related to him that their marriage would be void, the crime is incest. Code section 12978. Where a man has carnal knowledge of a girl under the age of consent, the crime is so-called statutory rape. The majority says, "lack of consent, or force and violence, is not a necessary element" of incest. This is also true of statutory rape. State v. Brooks, 181 Iowa 874, 890, 165 N.W. 194. The majority points out that lack of consent is implied by law in statutory rape. It is also implied by law in incest upon a girl under the age of consent. State v. Pelser, 182 Iowa 1, 13, 14,163 N.W. 600; State v. Stalker, 169 Iowa 396, 400, 151 N.W. 527, L.R.A. 1915E, 1222. The distinguishing characteristics of incest is the relationship of the parties rather than the youthfulness of the victim as in statutory rape. But this is insufficient basis for applying a different rule as to included offenses in the two crimes where the victim is under the age of consent.
In the early case of Benham v. State, 1 (Clarke) Iowa 542, 545, this court recognized that:
"`Every attempt to commit a felony against the person of individuals involves an assault.'" [McBride v. State, 2 Eng. (Ark.) 374.]
This doctrine has been repeatedly reaffirmed. See, for example, State v. Rounds, 216 Iowa 131, 138, 248 N.W. 500, and State v. Hoaglin, 207 Iowa 744, 749, 223 N.W. 548, 550, cited by the majority. In the Hoaglin case we held, after considering our previous decisions, that assault with intent to rape is necessarily included within every charge of rape, statutory *Page 851 or common law, "and that it is a rare exception" when its submission to the jury is not required. In State v. Blair,209 Iowa 229, 233, 223 N.W. 554, 557, a case of statutory rape upon an eleven-year-old girl, we said:
"If a consummated rape was perpetrated, there was necessarily an assault with intent to commit rape."
To the same effect is State v. Swolley, 215 Iowa 623, 625,244 N.W. 844, where the offense was what is sometimes called "rape of an imbecile," in violation of section 12967.
The State concedes there is such a crime as assault with intent to commit incest, and that, under a given set of facts, it should be submitted as an offense included within incest. It seems to me this defendant could not have committed the crime charged without first having committed an assault with intent to commit the crime. Perhaps this is the view of the majority, but the opinion seems to evade the question. I think we should decide it.
The majority holds that, assuming (without deciding) assault with intent to commit incest is included within incest, it was proper here not to submit it to the jury because "there was no evidence of any offense other than the completed one." This conclusion is reached because the girl's testimony "showed the act to have been completed" and the defendant denied having completed or attempted the act. Such testimony in statutory rape cases has not been regarded as sufficient basis for not submitting assault with intent to commit rape. On the contrary, the fact that a prosecutrix was of tender years and therefore might not understand the nature of the completed act to which she testified, coupled with a defendant's denial, might raise a reasonable doubt that the higher crime was committed and justify a verdict of guilty of assault with intent to commit the crime. In State v. Hoaglin, 207 Iowa 744, 755, 223 N.W. 548, 553, the prosecutrix testified to the completed act and the defendant denied any attempt and "any impropriety toward the prosecutrix," yet we held assault with intent to rape was properly submitted. See, also, State v. Blair, 209 Iowa 229, 223 N.W. 554; State v. Blackburn, 136 Iowa 743, 751, 752, 114 N.W. 531.
It is to be conceded that in some incest cases there might *Page 852 be no basis in the evidence for the submission of any included offense. This would result if a defendant admitted the act but denied the relationship. Doubtless there are other cases where it could be said a defendant was guilty of the offense charged if guilty at all. But this is not such a case.
I agree that it was proper, under our decisions, not to submit assault and battery or simple assault. Even though the prosecutrix could not consent to the crime charged nor to an assault with intent to commit that crime, she could lawfully consent to such acts as without her consent would constitute assault or assault and battery. If the defendant did not commit either of the two higher offenses, he did not commit either of the two lower ones — the prosecutrix under the evidence must be held to have consented thereto. State v. Beltz, 225 Iowa 155,165, 279 N.W. 386; State v. Blair, 209 Iowa 229, 236,223 N.W. 554; State v. Stevens, 133 Iowa 684, 686, 110 N.W. 1037.
I think the court's failure to submit assault with intent to commit incest requires a reversal.
BLISS, J., joins in this dissent.