134 Iowa 17 | Iowa | 1907
I. It is argued in behalf of the appellant that the evidence on part of the State was insufficient to justify the trial court in submitting a charge of assault with intent to commit rape to the finding of the jury. Without 'attempting to rehearse the testimony of the witnesses, we have to say that while the case made by the State in this respect does not seem to have been very strong or conclusive, there was not, in our opinion, such an. entire absence of evidence in support of the charge as to require the court to
To make clear the point and force of these objections we quote the testimony, questions, • and answers, omitting only the specific objections and exceptions which were all properly preserved. Referring to this interview, the county attorney asked the witness: “ Q. What did you say to him ? A. Why, I didn’t say anything to him down in your office. Q. Just think about that, Lena, do you remember whether at that time, whether you told him that he was the one, or not ? A. I didn’t tell him; but I told you that it was him. Q. Do you know whether you told me that in his presence,' or not? A. I told him when he was in there. I told you when he was in there. Q. Do you remember what he said ? A. Why, he said to you that he didn’t. That all he had to say that he could prove where he had been. Q. Do you know whether or not he said that he was not the one ? A. I didn’t know whether he said that. I don’t think he ■ said that. Q. Did you hear him say it ? A. No, sir. Q. When you were in my office there and Carl Hoover was there did you, or did you not, then know whether that he was the person that you saw down at the bridge on Friday night, October 6, 1905,' and that you say had hold of you? A. Yes; that was him that was in-your office that stopped me down on the bridge.”
The effect of these rulings was to enable the State to get before the jury the statements made by the complaining witness to the county attorney charging the appellant with being the person who had assaulted her. Under the rule recognized by this court in the case of State v. Egbert, 125 Iowa, 443, the admission of this testimony was prejudicial error. It would, we think, have been entirely competent to
It will be observed by reference to the testimony which we have above quoted from the record that it was only after some urging and suggestive questions by the county attorney that the prosecuting witness was brought t0‘ state the conversation which the prosecutor wished to bring out. Even then she does not testify to any admission made by the appellant, but, on the contrary, says in effect that he denied his guilt. There was nothing whatever in that interview so far as it is brought out in this testimony which in any manner tends to corroborate the story of the witness or to identify the appel
Had the testimony in this case and the restrictions put on it by the trial court come fairly within this exception to' the general rale, there would have been no error in the ruling of which the appellant complains. The exception, however, is one that should be applied with considerable hesitancy because of the evident danger that the jury will, in spite of the caution by the court, give effect to such evidence as substantive proof of the fact embodied in the hearsay statement and. not limit its effect to its' legitimate purpose of fixing a disputed date. It should be further stated that it is ordinarily sufficient for such purpose to prove the fact that a conversation was had upon the subject without relating to the jury the statements made in such conversation, unless same be called for upon cross-examination by the party against whom the evidence is offered. In the case at bar, the very evident inexperience and immaturity of the boy witness was such as to entitle his testimony to very little weight or
It must be conceded, we think, by the State that the testimony of neither of these witnesses taken by itself offers any evidence whatever tending to support the theory of the prosecution, and, in our judgment, the effect is in no manner strengthened or increased when we come to consider them together. We might be inclined to say that the admission of this testimony was error without prejudice, if the record as a whole seemed to make a strong and convincing case against appellant; but the story of the prosecuting witness, while entirely credible and candid as to the fact of the assault upon her at the time and place mentioned, is nevertheless marked by much uncertainty as to the identity of the defendant as the guilty person, while, on the other hand, the abili set up in his behalf is supported by such a large number of witnesses of whose credibility there seems to be no fair reason to doubt, that it seems entirely possible that the objectionable evidence to which we refer may have been directly effectual in bringing about a conviction. Some other alleged errors have been-argued by counsel, but the points thus raised are covered by
Nor the reasons stated, a new trial must be ordered, and for that purpose the judgment of the district court is reversed.