The grand jury of Polk County, Iowa, indicted the defendant, William Bell, Jr., for the crime of rape, charging that said defendant raped Rita Darlene Flatt, a female child under the age of sixteen years. The defendant entered a plea of not guilty but on trial was convicted and was *768 sentenced to life imprisonment. His motion to set aside the verdict and to grant a new trial because of the insufficiency of the evidence and errors committed during the trial being overruled, he has appealed to this court.
The defendant urges various errors alleged to have been committed in the lower court which, he claims, require a- reversal. We will consider the claimed errors.
I. He urges that the court erred in permitting the jury to pass upon the charge set forth in the indictnient, to wit, rape, and claims that the evidence was not sufficient to justify the court in so doing. In order to pass upon this claimed error it will be necessary for us to review the evidence. The crime charged was a revolting one and we can see no useful purpose in setting out its details. As a matter of fact, there is little dispute in the facts -save in one particular, i.e., the commission of the acts necessary to constitute the crime of rape. Defendant admits having committed acts which clearly indicate an attempt to consummate the crime of rape but denies having gone to the length of committing the act itself. Summed up, it is the claim of the defendant that there wаs no penetration of the sexual organs of the prosecuting witness. Contradicting this there was the positive statement of the child that there had been. The defendant admitted the giving and signing of a statement, following his arrest, wherein he admitted that he had committed the completed act. The prosecuting witness was examined by a physician a few days following the claimed offense and was found to be suffering from a gonorrheal infection. A like examination was made of the defеndant at about the same time and he was found to be afflicted with the same disease. The proof in both instances was positive. In fact, the defendant-admitted that he was afflicted with that disease. There was in the record other evidenсe tending to show that the crime had been committed and that the defendant was the perpetrator thereof.
Rita Darlene Flatt was a child aged ten years. Defendant was forty-three years old. He knew the girl and on one or two occasions she had helped him in his work as a janitor, polishing and dusting furniture in an apartment house. On a previous *769 clay tbe girl had assisted him in that work and be bad paid her a small sum of money. On tbe day .in question they were alone in tbe room and at that time tbe alleged act took place. Following tbe incident it was found that she was bruised and swollen about ber private organs and parts of ber clothing were soiled and stained. The prosecuting witness complained to her mother, naming tbe defendant as having raped her.
Other matters were shown in evidence but we think the above sufficient to require tbe court to submit to tbe jury tbe charge lodged against the defendant. We have carefully gone over the entire record and bold that a jury question was presented and that tbe court did not err in overruling defendant’s motion for a directed verdict. We find nothing in the evidence justifying us in interfering with the verdict rendered. State v. Madden,
II. Tbe defendant urges as error the action of tbe court in рermitting tbe prosecuting witness to testify, over objections of defendant; that she bad made complaints to ber mother a few days following tbe alleged crime and also in permitting tbe mother to testify to tbe fact that ber daughter bad made suсh complaints. Tbe alleged act was claimed to have been committed on Saturday, May 1, 1943, and the complaints to tbe mother were made tbe Friday following. Tbe mother testified, over objection, that ber daughter complained tо her that on that date she bad been raped and that tbe defendant, “Bill,” committed tbe act. The daughter gave like testimony. The State withdrew all of tbe evidence as to tbe details of tbe act except tbe fact of the complaint, tbe nature of tbe offense, and the identity of tbe perpetrator. We think that the evidence allowed to remain was permissible and proper.
In the ease of State v. Peterson,
*770
In the ease of State v. Symens,
In the present casе the prosecuting witness was a ten-year-old child. Her story showed nothing incredible. Neither did it have anything in it indicating-that it was “trumped up” or false. ' ¥e hold that the court did not err in permitting evidence to be received concerning such complaints.
III. The defendant urges that the court erred in refusing to sustain defendant’s objection to a part of the opening argument of the State, and in particular to the following statement of Mr. Thayer, the assistant county attorney:
*771 “I assume that the attоrneys in this case wouldn’t be satisfied with the proof in this case unless it went to the point that this man had killed this little girl.”
Mr. Howard, for defendant:
“I object to that statement as being inflammatory, incompetent, and improper, and ask the Court to admonish counsel to refrain from that line of questioning. I don’t knoTtf what on earth could have happened to justify it.”
The court:
“I don’t know. That is a statement of his own opinion as to proof in the case. What he says of course is not going to be taken, under the Court’s instructions to this jury already made, what he says, what any of the attorneys in the case say, is not part of the evidence. I think he can draw his conclusions about' what he thinks of the evidence, the proof.”
Following this the court addressed the jury as follows:
“Ladies and Gentlemen of the Jury. As the Court has already told you, the attorneys make these arguments to tell you what they believe the evidence shows and what they believe the proper conclusions to be drawn are, and as I have heretofore told you, their statements, whether they are telling you what they bеlieve the evidence shows or what they believe the conclusions to be drawn may be, certainly is not to be taken by you as evidence in this case, but only as their opinions and their ideas of the case or the evidence, as they see it. You are to decide this case, as I have told you, and will tell you again iu written instructions, on the evidence you hear here in this case and the instructions of the Court, and on nothing else, outside of what the evidence shows, of course, аt all times applying the'instructions of the Court.”
Evidently the court’s statement to the jury was intended to advise them that they were to determine the case by the evidence, guided by the court’s instructions, and, while the statement by the court was not a direct admonition to the assistant county attorney, yet it could be given that construction. No *772 further complaint was made concerning the statement and no instruction was requested by the defendant upon that point.
Later there arose a further controversy between counsel as to a statement alleged to have been made by 'Mr. Thayer in argument to the jury, in which he stated to that body that, following the time a copy of the confession, or,statement of the defendant, was furnished tо his attorneys, he imagined that what Mr. Howard did, after getting .a copy of the statement, was to “run right over to the county jail and tell this fellow [defendant], ‘Wait a minute. You didn’t do this.’ ” In the argument ensuing Mr. Thayer claimed that what he said was in answer to some assertiоns made in argument on behalf of the defendant as to the unfair practice of' an assistant county attorney in interviewing the defendant. Following statements of counsel on both sides as to what had been said in argument and what had brought forth the statement by Mr. Thayer, the court said:
“You go ahead and make your argument. Keep in mind what I have told you, Ladies and Gentlemen of the Jury.”
It is elementary that in making an argument to a jury counsel have a right to draw their own conclusions. The court, in referring tо the first objection made, evidently felt that that was what Mr. Thayer was doing when he made the claimed objectionable statement. It seems to us that the statement was unnecessary and uncalled for, but, in view of the statement of the court to the jury, we do not think it was so prejudicial as to call for. a reversal of the case. We think that the same holds true as to the second complaint as to what happened following the time when Mr. Howard was furnished a copy of the confession and went to the jail to see his client. There was a controversy as to what had been said in argument preceding the statement objected to. The State claimed that the alleged statement was in answer to what counsel for the defendant had stated in prior argument. The arguments in the case were not reported and this court is not able to determine what statements were made, the cause or reason therefor. However, we are unable to seе where any prejudice could have resulted from what *773 the assistant county attorney said. Telling the jury what the attorney for the defendant might or might not have said to his client would amount to nothing more than mere speculation,, and we question whethеr such a statement would be given serious consideration by the average juror.. In arguments to a jury, counsel are entitled to some latitude in analyzing the evidence, drawing conclusions, and pointing "out inferences which they feel may be drawn therefrom. As in various other situations, there is a border line between the proper and the .improper.
It is the duty of the trial court to see that the arguments are kept within proper bounds. This duty is highly imperative when a person is on trial charged with a serious offense. A defendant is entitled to the protection of the law and the court should see that his rights therein are not transgressed.
The sentence pronounced upon the defendant was serious— life imprisonment; yet the crime committed was of a most serious nature. The tender age of the prosecuting witness and the communicating to her of a foul and loathsome disease make the ease all the more aggravating. The taking advantage of a tender 'child by a mature person for the purpose of satisfying animal passions calls for the imposition of a severe penalty. The case is affirmed. — Affirmed.