189 Iowa 567 | Iowa | 1920
Lead Opinion
“It affirmatively appeared, however, from the testimony of others than the child, that the accused was the only person .in the house at the time, capable of committing the act. This, in connection with the immediate circumstances corroborating her testimony that the crime was committed at that time, was proof of something, more than mere opportunity ; for, by excluding the possibility of anyone else having committed the offense, and confirming the child’s story that it was then committed there under the circumstances, tended to single him out as the real perpetrator.”
It has been held repeatedly, however, that mere opportunity is not, of itself, sufficient' corroboration. This is doubtless on the theory that a man and woman are-very often, in the ordinary, everyday affairs, and under proper and innocent circumstances, alone together. It is appellant’s contention that the evidence of witnesses other than prosecutrix, which is relied upon by the State, shows no more than mere opportunity. It has been often held, however, that, if the opportunity was of defendant’s creation, •and made with apparent deliberation, such circumstances should be .considered in determining whether or not defendant is the guilty part3r. State v. Crouch, 130 Iowa 478: State v. Lindsay, 161 Iowa 39, 44; State v. McGhuey, 153 Iowa 308; State v. Waters, 132 Iowa 481; State v. Bricker, 135 Iowa 343; State v. Norris, 127 Iowa 683; State v. Powers, 181 Iowa 452; State v. Ralston, 139 Iowa 44; State v. Stevens, 133 Iowa 684. In the instant case, the State relies upon the testimony of the brother of prosecutrix, a'nd some other circumstances, to show statutory corroboration; and it contends that the testimony of the brother corroborates
It appears from the testimony of the prosecuting witness that, at about 4 o’clock on the afternoon of the day in question, prosecutrix, in company with her 10-year old brother, Richard, and her cousin, a girl about the size of Flossie, met defendant near defendant’s residence, and defendant told Flossie to come up to his room; that he wanted to give her her brother’s picture. Her brother had gone to war, and she and her parents knew that defendant had the picture. Richard went with Flossie as far as the gate. Defendant lived upstairs. Flossie then accompanied defendant to his room, and Richard remained at the gate, or yard, as he was requested to do by the defendant. After defendant and the little girl got into the room, defendant got the picture of her brother, but did not give it to her immediately, but put it in his pocket, and told Flossie to lie down on the bed in the room. According to her testimony, the rape was then committed. We shall not go into the details, except to say that she testifies that she complained that it would hurt, and that he told her it wouldn’t hurt, and not to tell anybody. She describes some of the furniture in the room, a brass bedstead; and witnesses other than Flossie testify thereto. • She estimates that she was on the bed, in the position described, for about five minutes. After the transaction complained of, defendant accompanied prosecutrix to her home, where she lived with her parents, about a block distant. He went ahead of her, and she followed. After reaching the Hogaboom home, defendant observed that Flossie had some small change, and asked her how much she had, and told her to give that to him, and he gave her a dollar. This was in the presence of her father, mother,
The brother testifies that he remembers being at the place indicated by his sister, and with her and his cousin; that he saw defendant there; that witness went just to the gate, then defendant told him to stay down; that defendant said he had a picture of the brother, and told Flossie to come and get it; that defendant said it was up at his house; that the boy stayed down; that they went up into tbe house ; that witness was down by the gate.
The jury may well have found that the opportunity for intercourse was created or manufactured by the defendant, under suggestive circumstances, and that his purpose ih asking the boy to stay outside at the gate was for the purpose of having intercourse with the girl. It occurs to us that .he could have had no other purpose. If he was only wanting to get the picture for prosecutrix, and his purpose and intention were innocent, there could bé no object or reason for not wanting the boy present. The picture was that of the boy’s brother, as yell as Flossie’s, and there would appear to be no reason why the boy should not have gone with defendant and the little girl. We shall not discuss the other circumstances relied upon by the State. The matter referred to was properly corroborative, and we think it was sufficient for the jury. This disposes of the principal point in the case.
2. Some of the instructions are complained of, but they were not excepted to, and this is conceded.
“Q. Defendant was quite friendly Avith Sam Christensen this summer?
“Mr. Hess: Objected to as not cross-examination.
“Court: I take it that is preliminary. You may answer.”
:. There A\ras no other objection to ■ any question propounded to this witness. .(The first AA'itness,had testified before, and in the same cross-examination, and without objection, in regard to defendant’s drinking habits.) The
“Q. That was just because you happened to live on the way to his home from the lodge room? (Objected to as argumentative, incompetent. Overruled.) ”
The same witness was asked as to the divorce, and the objection was that the testimony was incompetent, irrelevant, immaterial, and not a fact, and that the decree does not so show. The witness answered, “No.” These two objections are the only ones made to the testimony of the witness just mentioned. To the next two witnesses, there was no objection whatever.
To my mind, it is unbelievable that a jury, acting as such under oath, could have ignored the testimony given on the trial, and decided this case upon these matters, or that there was any prejudice to the defendant. Counsel for defendant seem not to have considered it of enough importance to even refer to it in their abstract filed in this court, or in their original argument.
We discover no prejudicial error, and the judgment is, therefore, — Affirmed.
Concurrence Opinion
(concurring.) Aside from evidence tending to show the improbability of prosecutrix’s having been in defendant’s room at the time fixed by her, the accused relied on proof tending to establish his character as a man of morality and decency. He called Nelson, Still, and Leffert, of whom he inquired as to his general reputation for mor
Dissenting Opinion
(dissenting). -The defendant was charged with a sexual crime. He produced witnesses who testified
It is the fact that no objection Avas interposed to most of these inquiries. But the practitioner Avill instantly appreciate the dilemma of defending counsel. True, failure
Moreover, the record discloses that' objections would have been futile; for, as has been and will be shown, they were overruled when they were interposed.
1-a
Loseth was asked whether he ever heard that, in 1914, a petition for divorce was filed against defendant by his then wife, which charged him with cruelty and habitual drunkenness, and whether he had heard that she had later got a divorce. Smith was questioned to like effect; and Leffert. Conway was cross-examined as follows:
“Q. Did you ever hear that his wife at that time, got a divorce from him, on the ground of cruel and inhuman treatment such as to endanger her life, and on the further ground of habitual drunkenness?”
Defendant objected that this was incompetent, irrelevant, and immaterial; that it Avas not a fact; and that the decree sIioavs no such thing. The court overruled the objection, Avith the statement: “It isn’t a question of what the decree sIioavs ; it is a question of Avhat this witness heard.” The ansAver Avas “No.” Thereupon, he Avas asked again:
“Q. Did you ever hear that his Avife, in 1914, filed an application for divorce, in which she set up the claim that he Avas guilty of cruel and inhuman treatment towards her, such as to endanger her life, and also habitual drunkenness ?”
It Avas objected that this Avas incompetent, irrelevant, and immaterial, and the objection Avas overruled.
“Q. Did you ever hear that she subsequently got a di
Nelson was asked:
“Did you ever hear that his former wife got a divorce from him, in September, 1914, on the charge of habitual drunkenness and such cruel and inhuman treatment as to endanger her life?”
This whs objected to as incompetent, irrelevant, and immaterial, not the best evidence, not cross-examination. The objection was overruled, and the witness answered: “I understood she got a divorce, bxit I never heard on what grounds.”
II. It was persistently put before the jury that defendant had the reputation of drinking and bootlegging and consorting with bootleggers, and that he was an habitual drunkard; persistently put before it that his wife had asked a court to divorce her because defendant was an habitual drunkard, and guilty of treating her with such inhuman cruelty as to endanger her life. This last line of testimony and some of' the other was permitted despite objection. First, the jury was thoroughly inoculated with the drinking and bootlegging tendencies of the defendant. Then the rulings of the court added that, in its opinion, this, and the reputation that the wife had filed such a divorce petition, and that she had obtained a decree, tended to impeach the testimony of witnesses who said that defendant had a good reputation for sexual morality and decency. It seems to me to be manifest that the overruling of these objections constitutes error. And from error, prejudice is presumed. And I have attempted to set out what shows that the presumption is well founded. I am abidingly convinced that permitting this line of inquiry wrongfully deprived the defendant of the weight justly due the testimony supporting his good character. I must not be understood, however, to argue that a character witness may not properly be cross-examined as to what he has, in fact, heard concerning the reputation to which he has spoken. Observing relevancy, the witness may be interrogated on whether it has not been
As to another argument, to the effect that, where guilt is so clearly proven that, though there was error, there is no prejudice, I have this to say: There was a flat conflict. There was testimony as to good character, and no one may say that utterly conclusive proof overcomes the presumption that error is prejudicial. Had this been a suit for damages, based on alleged rape, and had a jury found for the defendant, no court would have set the verdict aside on the ground that it was not sufficiently sustained by evidence. And we held, in Cram v. City of Des Moines, 185 Iowa 1292, that, even as to a defendant in a civil suit, we could not hold that the record showed a cure of the error, because of conclusive evidence of negligence on part of the plaintiff. If that must be held in a civil suit, and against one who has no burden, surely, the State, which had the burden of showing guilt beyond reasonable doubt, may not say in this case that it has so overwhelmingly met its burden as that the state of the evidence has overcome the presumption of prejudice arising from the commission of error.
I would reverse, and am authorized to say that Mr. Justice Stevens concurs in this dissent.
Concurrence Opinion
I concur in the conclusion that the judgment be affirmed, but wish to say that, in my opinion, the testimony discussed by Mr. Justice Salinger in his dissent should have been excluded. In view, however, of the record as a whole, I cannot believe that the error in its admission is of a character to call for a reversal.