124 Iowa 5 | Iowa | 1904
The assignments of error cover a wide range, and present nearly every question which could arise on a trial of this character. It will not be necessary to consider every point made, for most of them have, already been determined adversely to appellant’s contentions in former decisions of this court.
Many other rulings on the admission and rejection of testimony are complained of, some of which we shall notice. Complaints were made by the prosecutrix to her brother and mother the day the alleged offense is said to have been committed. Evidence of such complaint was properly received.
The prosecutrix, while being cross-examined by the defendant’s counsel, disclosed certain matters which had not been called out by the county attorney, and she was asked if she said anything to the county” attorney about them when being examined in chief. Objection thereto was sustained, and, as we think, properly. The jury knew the fact as well as any one.
She was also asked about a young man who came to her father’s house to play an organ, to whom her parents had objected, but was not permitted to answer. There was no error in this ruling. Defendant did not claim that he was going to follow this up by showing improper conduct between the prosecutrix and this young man; hence the testimony was properly rejected. State v. McDonough, 104 Iowa, 6.
It was claimed that a witness for the State, who was examined before a committing magistrate, changed his tes
Evidence as to the weight and condition of health of the prosecutrix was a material inquiry, and there was no error in permitting the State to show these matters.
Other rulings are complained of. Conceding some of them to have been erroneous, yet they were without prejudice, for the witnesses were each permitted to answer the very questions to which objections had been sustained, without any objection being interposed. This is particularly true as to the prosecutrix’s appearance immediately after the occurrence, when she and her brother took refuge in a barn to protect themselves from a rainstorm. The whole matter was fully covered. And the same may be said with reference to certain hypothetical questions ’propounded to doctors who were examined both for the State and the defendant. A book on anatomy was offered in evidence as a part of the cross-examination of one of the State’s witnesses. It was not offered for the purpose of impeaching him, but, rather to sustain him, and to get certain cuts and illustrations before the jury. With these cuts was some printed matter, which the trial court thought should not go to the jury. We do not know what this was; but presuming, as we must, that the trial court was correct in its ruling, in the absence of evidence to the contrary, we must assume that it was sufficient to justify the ruling. At any rate, the statements made in this book were not competent as substantive evidence.
But one other ruling on evidence need be considered. A witness who had looked over the ground was asked as to whether certain objects would interfere with the line of vision between defendant’s house-and the straw stack where it is claimed the ravishment occurred. The question was leading, and no prejudice resulted, in any event. The witness gave the exact situation and conditions, and it was for the jury to say whether or not one of the defendant’s main witnesses could have seen what she said she saw. Moreover, the conditions were not the same as they were when the ravishment is said to have occurred.
V. Misconduct of counsel for the State in argument to the jury is complained of. We have gone over this matter with care, and find that counsel did not transgress in the re
VII. The instructions as to corroborative evidence which are complained of read as follows:
“ The defendant in a prosecution for rape, or an assault with intent to commit rape, cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense. The fact that a crime has been committed by some one may be established by the testimony of the injured party alone. But in order to convict for the offense of rape, or assault with intent to commit rape, it is necessary that the testimony of the injured party be corroborated by other evidence tending to connect the defendant with the commission of the crime. In arriving at a conclusion as to whether the prosecutrix, Mae Seibert, has been corroborated by other evidence tending to connect this defendant the offense .of rape, or assault with intent to commit rape, you may consider all the facts and*14 circumstances surrounding the case established by the evidence at the time of the commission of the offense, if one was committed, and all other circumstances as shown by the evidence may be considered by you in determining whether the prosecutrix, Mae Seibert, has been corroborated by other evidence tending to connect the defendant with the commission of the offense of rape, or assault with intent to commit rape, if either of such offenses was committed. Mere proof of opportunity to commit the offense-is not sufficient corroboration. However, it is enough that the corroborating evidence tends to strengthen and corroborate the prosecutrix in connecting the defendant with the commission of the offense, and point out the defendant as the person who committed the offense, if any was committed. It is for you to determine whether the testimony of the prosecutrix in this case has been sufficiently corroborated by other evidence tending to connect the defendant with the commission of the offense of rape, or assault with intent to commit rape, if either of such offenses has been committed.
“ Tou should acquit the defendant of the offense of rape unless the testimony of Mae Seibert has been corroborated by other evidence tending to connect the defendant with the commission of such offense. And you should acquit- the defendant of the offense of assault with intent to commit rape unless the testimony of Mae Seibert has been corroborated by other evidence tending to connect the defendant with the commission of such offense.
“ Evidence has been admitted tending to show that the prosecutrix, Mae Seibert, made complaint to her brother and mother on July 18, 1902, that she had been ravished by defendant. Such complaints, if any, would not be evidence corroborating the testimony of prosecutrix tending to connect the defendant with the commission of the offense of rape, or assault with intent to commit rape, if either of such offenses was committed; and neither would the existence of .injuries, if any, to her genital organs, be corroboration of*15 tbe testimony of the prosecutrix tending to connect the defendant with the commission of either offense of rape, or assault with intent to commit rape, if either offense was committed; but the evidence of such complaints was admitted as tending to confirm or corroborate the truth of her testimony. The law is that a failure by the prosecutrix to immediately complain is looked upon as a suspicious circumstance that her story is a fabrication. ITence the testimony of such complaints was admitted for the purpose of testing the accuracy and veracity of the prosecuting witness, and for no other purpose.”
We have now gone over the entire record, and, while we might not have come to the same conclusion as the trial jury did had the case been submitted to us for decision upon ■the facts, yet it is not such a one as to justify us in interfering. If the prosecutrix is to be believed, the defendant • committed a rape upon her. The jury evidently accepted ■her story, and, while it must be confessed that the showing as to resistance on the girl’s part is not strong, yet it appears that she was not strong, was in ill health,, weighed but 100 •■pounds, and, according to her version of the affair, was ■ much intimidated by the defendant, who, it appears, was a •robust, healthy, and active man-.