152 Iowa 675 | Iowa | 1911
The case as made for the state is practically as follows: Defendant is a colored man, about thirty-three years of age, and prosecutrix is a colored woman, eight years older than defendant. Defendant has served at least one term in the penitentiary and many terms in county or city jails. Prosecutrix is a woman of bad moral character and undoubtedly a prostitute. At the time in question, prosecutrix was living with her sister in South Des Moines, and defendant had just been released from jail. The house in which prosecutrix lived had but two rooms; the back one being a kitchen and bedroom combined, and the front a sort of sitting room. Prosecutrix claims that at the time charged in the indictment she was looking over some samples of combs, which a traveling salesman was showing her in the front room, when, hearing a noise at the back door, she went into the kitchen, was there met by the defendant, who had gained admittance into the house by cutting the wire netting from a screen door, and was then and there assaulted by the defendant, choked and thrown upon the bed, and there defiled by him. She also claims that defendant held in his hand an open knife, and that he threatened to kill her if she did not lie still and submit to his embraces. Her story is to some extent corroborated by the fact that she had some bruises upon her face, and that she almost immediately made complaint to an officer, who had been called to the scene by prosecutrix’s sister, although the nature of the complaint — that is, as to whether or not it was of a simple assault, of an assault
Again, defendant endeavored to show that Mary Manning, prosecutrix’s sister, was angry with defendant because of his relations with prosecutrix, and had a motive in testifying against him. This testimony was rejected by the trial court, and, as we think, improperly.
II. The most serious complaints, however, are of the
(4) -The prior relations and association of the prosecutrix and the defendant may be considered by you, for the purpose of determining whether the defendant would be likely to commit the crime charged at the time and place and in any manner as testified to 'by the prosecutrix.
Nothing was given by the trial court with reference to the subject matter of the first of these instructions, and as it announced a correct rule of law it should have been given. Code, section 4613.
The trial court erred in limiting this testimony in the manner set out in the instruction, and in not giving the instruction asked, or something like it. The true rule, shortly stated, is that proof of prior intercourse is admissible to give rise to a presumption of consent to the act in question. It is true that defendant was found not guilty of rape, but the testimony adduced was admissible, and should have been considered as bearing upon the Included offense of assault with intent to commit rape, of which offense defendant was convicted. Prosecutrix and defendant are both depraved, and it is doubtless better for the safety of society that defendant 'be kept in confinement;
For the errors pointed out, the judgment must be, and it is, reversed.