State v. O'MearaState v. O'Meara
- Reporters:
- Before:
- Ladd
“About half past 8 or 9, — about half past 9. Q. Do you know for sure ? A. No, sir. ’ ’
The defendant testified substantially as did the other witnesses, concerning the occurrences up to the time he stopped the automobile in the lane; that Ida Knudsen left the car; that he took hold of the shoulders of prosecutrix, who was sitting with him, and kept her in the seat; that, when she insisted on getting out, he allowed her to do so; that he then went down the road to look for the other girl, and was gone about 10 minutes; that, upon his return, he saw prosecutrix and Rathbun getting up from the ground; that he picked up her hat and handed it to her; that he requested her to ride back with him, and she refused, saying that if the other girl was going, to walk, she was too; that she appeared to be mad at Rathbun; that Rathbun said that “he would get into a little trouble;” that “he had a hard time getting Avhat he wanted. ’ ’ The. witness then told of the trip to Nebraska, substantially as had Rathbun, and explained that, in the morning of November 5th, his father had refused him a team to use in picking corn for a neighbor, and had also informed him that he could not.have the automobile any more, because he didn’t go to church that Sunday, and denied him the privilege of riding to town with him; and that thereupon he told his father that he would leave home, and proceeded to pack his clothes, and left in his Ford automobile about noon that day, — and this account was fully corroborated by the testimony of his father and mother. The witness was cross-examined as to the occurrences in the lane, as follows:
“Q. And Ida got out there? A. Yes, sir. Q. The curtains were still on the car, weren’t they? A. Yes, sir. Q. Elsie was going to get out ? A. Yes, sir. Q. She tried to get out of *619that car ? * * * A. Yes, sir. Q. And you stopped her from getting out? A. Yes, sir. Q. You held her in the car? A. Yes, sir. *** She didn’t scream. She didn’t say a word. She didn’t try to get away. # * * Q. You didn’t want her to get out? A. No, sir. * * ‘* I wanted to hold her there; I wanted her company * * * She would have gotten out if she insisted on it. I didn’t hold her. Q. If you had not held her there in the first place, she would have gotten out? A. I suppose so. Q. How long did you stay there, holding her? A. I don’t remember. Q. Give us some idea. A. About a minute or so, I suppose. * * * Q. And then she herself got out ? A. Yes, sir. Q. What did you do when she got out ? A. I got out. Q. Why did you get out? A. Ernie told me to go back and get the other girl. Q. Why did you want the other girl, when you were -trying to-hold Elsie in the car? A. I didn’t want the other girl at all then. Q. When Elsie got out of the car, what did Ernie do? A. Got out and held her. Q. You saw him holding her? A. Yes, sir. Q. Why didn’t you drive your car after Ida? A. Because I knew she had nit gone far, and I thought I could catch her. Q. The reason you were going after her, was because you didn’t want her to walk home? A. Yes, sir. * * * Q. Then why didn’t you go after her with the car ? A. Because I thought I could catch her before she got so far.”
The witness here testified that he couldn’t see her up the road, and did not overtake her.
“Q. Ernie was wrestling with that girl, wasn’t he? A. Yes, sir. Q. She was trying to get away from him, wasn’t she? A. I couldn’t say as to that. * * * Q. You did not try to find out what Ernie was trying to do with her, did you? A. No, sir. Q. You simply left her there to his mercy, and ran for someone else, — is that what you want this jury to believe? A. Yes, sir.”
The evidence showed that it was about 678 feet from the end of the bridge to the residence of Prior; and, if the car was stopped about 300 feet up the lane, this would make the house about 978 feet distant from the occurrences of that night. The Moorehouse residence was about 1,260 feet from the end of the bridge, and the occupants of each house testified that they heard no outcry, and two or three others who may have been along the *620bridge and in a situation to hear, swore that they heard nothing. Three witnesses say that they had heard Rathbun brag that “he got Elsie’s virtue, and that Ray O’Meara got nothing.”
Such, in substance, was the evidence introduced, and we have to say that not only was it sufficient to carry the issues as to whether the defendant was guilty, to the jury, but that rarely has the accused been so conclusively shown to have perpetrated the crime charged. The evidence disclosed that neither defendant nor Rathbun had testified at the trial of the latter, who was convicted, and their testimony was sufficient to sustain the verdict, had all other evidence been omitted. As will appear later, the story of Rathbun might have been found sufficiently corroborated by the accused, as that of prosecutrix must have been found to have been sufficiently corroborated by the testimony of Ida Knudsen, on the trial of Rathbun. The jury might have believed .the accused, when he swore to driving his automobile into the lane, off the main road, among the trees, and there stopping, where he held prosecutrix as her companion was leaving, and have rejected his story of what followed, as manufactured to shield himself from conviction, though subjecting him to contempt as unreasonable, and unworthy of belief. Undoubtedly, these girls were indiscreet, but they were cautious enough to exact a promise that the automobile should not leave the pavement, and that the ride should end in one half hour; and there was nothing else in their conduct during the evening even to excite suspicion in the minds of the lecherous; and, even if it were otherwise, there was no excuse for the resort to force. The evidence of prosecutrix was sufficient to prove that sexual intercourse was had against her will, but this was confirmed by the testimony of Rathbun. The story of these witnesses was corroborated by the evidence of defendant, in admitting that he restrained the prosecutrix in the seat of the automobile, and left her to the mercy of his criminal associate. These young women, as said, were indiscreet in taking a ride with strangers so late in the evening, or, for that matter, at any time; but there appears to have been nothing in their conduct to encourage either Rathbun or the accused in the belief that they were of loose morals. That the entire occurrence occupied scarcely more than 50 or 55 minutes, might be considered as *621having some bearing on the credibility of the witnesses; but automobiles move rapidly, and we are not ready to say that all to which the witnesses testified might not have happened ‘within that time. All these circumstances were for the jury to take into consideration; and, in our opinion, the evidence was ample to sustain the conviction.
“If it be such as to satisfy the jury that the witness spoke the truth in some material part of his testimony in which he is confirmed by unimpeachable evidence, this is sufficient, if it leads to the conclusion that he also spoke the truth as to other matters, for which there was no corroboration.”
Again, in State v. O’Callaghan, 157 Iowa 545, the court, speaking through Deemer, J., said:
“It is not necessary that the accomplice be corroborated upon every material fact to which he testifies. It is enough if he be so corroborated on some of the material facts as to satisfy the jury that he spoke the truth with reference thereto, and thus induced the belief that his entire testimony is true, although not otherwise corroborated.”
Of course, “the material part of this testimony” mentioned in the first case, and “the material facts” in the last, must have been such as tended to connect the accused with the commission of the offense, and the language in each is to be so qualified.
Other decisions might be cited in the same import, but this is unnecessary. The testimony of either prosecutrix or Rathbun might have been found to establish the perpetration of the offense ; but corroboration, such as exacted by statute, was essential *622to conviction. The testimony of the accused, wherein he admitted having forcibly held prosecutrix in the seat of the automobile, as Ida Knudsen started for home, and swore that the latter had called prosecutrix to come, and that she responded that she couldn’t, was corroborative of the story of prosecutrix, as well as of that of Rathbun. So, too, was the testimony of Ida Knudsen, that, when she had left the automobile a short distance, she called prosecutrix to come, and she responded that she couldn’t, and immediately afterward uttered “a heavy, shrill scream.” The sufficiency of such corroboration to connect the accused with the commission of the offense was for the jury. Ordinarily, mere opportunity is not a corroborative circumstance; but where the opportunity is of defendant’s creation, and made with apparent deliberation and design, it may be considered with other circumstances in determining whether the accused is the perpetrator of the offense. State v. Powers, 181 Iowa 452; State v. Lindsay, 161 Iowa 39; State v. Crouch, supra. So, too, proof of flight is corroborative in its nature. State v. Ralston, 139 Iowa 44; State v. Hetland, 141 Iowa 524, 526. The corroborative evidence, as seen, was abundant, and sufficient to carry the issue to the jury.
‘ ‘ This testimony was admitted in the case for what it might be worth, in showing the association and whereabouts of the defendant O ’Meara and Ernest Rathbun for a short time prior to the time it is claimed this crime was committed; and this *623evidence can be used by you alone for that purpose; and for the consideration of all other questions in the case, the evidence of each and all of these witnesses must not be considered by you. ’ ’
As these incidents occurred within two hours of the time of the offense alleged in the indictment, and apparently during the same trip with the Ford automobile, we are of opinion that the evidence was admissible for the purposes stated in the instruction. As its consideration was so limited, we have no occasion to inquire whether the evidence might not also have been considered as tending to throw light on the bent of the accused’s mind, and the purpose of the accused and his companion in inducing the prosecutrix and her companion to ride with them, and carrying them to a more or less secluded place in the lane, among the trees. See State v. Robinson, 170 Iowa 267. The instruction has our approval in the respect criticised, and the evidence was rightly admitted.
IV. Counsel contends that there was no evidence of voluntary complaint, and insists that the court erred in the submitting to jury whether she so did. Her mother testified that:
The prosecutrix testified:
“When I got home, I first saw father. I went upstairs to my mother’s room, and lit the light, and talked to my mother and told her what had happened.”
Manifestly, there was room for a finding that she voluntarily made complaint, immediately on reaching home.
“I desire to show the circumstances under which he [witness] is here, and to inquire as *624to his right to testify in this case, and object to it further as hearsay. ’ ’
No ground was apparent or suggested for then cross-examining the witness, and the court did not abuse its discretion in not permitting such cross-examination until the direct examination had been closed. On cross-examination, it developed, as the witness swore, that one of the State’s agents, investigating the charge against the accused, and an attorney then representing the State, suggested to Rathbun, when in Sioux City, that they wished him to make a confession, and said, in substance, that, if he would do so, it would help him; and that, when he applied for a parole, there would be no opposition on their part; and that he would get out of prison quicker, if he made a confession. Later on, the witness testified that all promised was that they would not try to stop the parole; and that he was not asked to tell anything that was not absolutely true; and that he had not done so as a witness. This evidence went to the credibility of the witness, and was proper for the jury to take into account in determining what weight should be given to his evidence; but it furnished no ground for excluding him as a witness, nor for rejecting evidence. Counsel for appellant have confused in their brief the rule allowing these matters to be shown as bearing on the credibility of a witness, with that which excludes proof of admission, and confessions of the accused on trial, when induced by hope or fear. There was no error.
*625
“ It is a very old saying that ‘ Conscience does make cowards of us all, ’ and further, ‘ The wicked flee when none pursue. ’ ’ ’
In that ease, the court held that the circumstance that the accused had fled was rightly called to the attention of the jury.’ See, also, State v. Waltz, 158 Iowa 191. There was no error in overruling the objection.
IX. Exception is taken to the fourteenth instruction, which reads:
This is criticised, for that his departure from Ida County, as is said, “had been very fully explained, and that his return and submission to arrest refutes the claim of flight.”
It may be, as his parents testified, that he threatened to leave home because of his father’s refusal to allow him the use of a team for picking corn for a neighbor, in the morning following the transaction in question, and refusal to allow him to *627ride to town; and he may have left because of the attitude of his father. But he might have done so without leaving the state or county, and it was for the jury to say whether, in leaving with Rathbun at about noon of the day following the alleged perpetration of the “offense, and gathering corn in the fields of another state, he left because of what his father had said, or to avoid arrest and prosecution for the crime he is alleged to have committed. Nor is the instruction subject to criticism for telling the jury to take all the testimony, including the explanation, if any, into consideration, in determining the guilt or innocence of the defendant. This was not saying that a finding on this issue might rest on evidence of flight alone, as seems to be thought, but that it was for consideration of the jury, in connection with the other evidence adduced. Nor was there error in requiring the jury to say whether trouble with his father was explanatory of defendant’s departure; for, though the accused may have left home because of the father’s attitude, it was for the jury to decide whether such attitude also explained his departure from the community and the state. That upon his return he voluntarily submitted to arrest is not necessarily inconsistent with previous flight, though having some bearing on the cause of his departure. The matters to which counsel direct attention go to the weight and significance to be accorded the evidence, but are not persuasive as indicating error in its reception, or in this instruction with reference to its consideration.
“The act of this young fellow perpetrated upon that girl has sentenced her throughout her lifetime to that awful skeleton which will always be in her closet.” Later on, he observed that:
“These girls are only children, and the boys that asked them to ride, one was 17 and one was 19; and these things are happening every day in the state of Iowa; and, while it may be called indiscreet, I do not believe there is one of you that *628would censure these girls. The questionable conduct of these boys is up for your consideration in this case.”
The objection to the first statement was that it was improper, and to the last, that the remark was directed specifically to the defendant. “We know of no rule whidh precludes counsel from characterizing the offense charged, and portraying its consequences, or from discussing the evidence in the light of experience, or from directing remarks directly to the accused. What was said did not constitute misconduct, but was within the domain of fair argument.
In the closing argument, Kindig, after alluding to the arguments in behalf of the accused, remarked that:
This was objected to as outside of the record, and it was. The record was without evidence that such advice had been given. There was no ruling. The objection should have been sustained, and counsel admonished. But no prejudice could well have resulted. Rathbun had testified to all the details of the crime alleged, and to his participation therein, and this was stronger than any advice he could have given; and, had he given advice, it” must have been that suggested. The misconduct was without prejudice.
Again, the attorney, in referring to the alleged inducements held out to Rathbun, said:
This was objected to as not being a fair statement of the law; and it vras not accurate, for it was broad enough to exclude even the officer having power to grant pardons; but this was followed by a correct exposition of the law relating to such matters, and there Avas no prejudice. Counsel proceeded:
*629
This was objected to “being improper and misconduct on the part of the attorney for the State,” and further, that the record did not disclose “what he will do.” The court ruled that this was “legitimate response to the argument of the defense.” The record contains nothing indicative to the contrary. The ruling is presumed to be correct, and in the absence of any showing to the contrary, must be upheld. Nor can the argument be denounced as improper, in the light of the evidence adduced. If defendant were guilty, he was no more nor less guilty than Rathbun, and entitled to no more nor less consideration; and counsel said no more.
In further argument, counsel exclaimed:
Counsel for defendant objected “to the remark as improper. It is not a question of what happened on the other case; it is a question of what happened in this case.” The court: “You must stay in the record.”
The objection should have been sustained, and the jury might well have been warned to give no heed to the suggested comparison. Such an argument is scarcely excusable because of over-zeal; for every lawyer is aware that a conviction by one jury is not a legitimate argument for conviction by another, even on the same evidence. But, on mature reflection, we have concluded that, in view of the record, the allusion to the other trial could not well have been prejudicial. The record, as seen, disclosed that neither Rathbun nor the accused had testified on the other trial. Their testimony alone would have been sufficient to carry the case at bar to the jury. It is manifest, then, that, in some respects at least, a stronger case was made out *630than against Rathbun when he was convicted, notwithstanding defendant’s denial of having individually committed the offense charged. Evidence of what happened at the other trial might have been excluded, but this was not done; and we are of the opinion that directing attention to the fact established by the evidence, that Rathbun’s testimony was added to that adduced on the other trial, was not prejudicial to the accused. In view of this conclusion, there is no occasion to review the proceedings under which the record is said to have been corrected. —Affirmed.
Weaver, C. J., Gaynor and Stevens, JJ., -concur.