181 Iowa 452 | Iowa | 1917
“That said E. F. Powers on or about the 3d day of September, A. D. 1915, in the county of Carroll, in the state of Io;wa.
“The said E. F. Powers on the 3d day of September, A. D. 1915, did,” etc.
By objections to testimony, requests to charge, and by motion to direct, it was asserted that this indictment does not lay the venue in Carroll County, it being urged in support that there is no compliance with Code Section 5289, which requires the venue to be alleged in the charging part of the indictment, and that the indictment is insufficient under the rule that the venue must be expressly averred, as distinguished from inference or suggestion (State v. Daily, 113 Iowa 362), and that indictments may not be aided by intendment. State v. Ashpole, 127 Iowa 680.
Despite the paragraphing and punctuation as above shown, and which are what appellant relies upon, we think venue was clearly laid in Carroll County.
2-a
Each of these men had said positively upon his oath that he would be controlled by what he heard the witness say in the foreign tongue, no matter what the interpreter said. To indulge a presumption that they followed the charge of the court is to presume that they did that which they swore they would not do. It gets nowhere to admit that the translation was correct, so long as, though correct, the jurors did not follow it, if, perchance, they thought it was incorrect. As the business of our courts is to be done in English, there can be no presumption that either defendant or his counsel or the court understood German. If it be presumed that they did, there is no machinery for making that understanding of use. What if defendant knows that the translation be in fact a true reudition of what the witness has said, how cau defendant know that such is the opinion of the jurymen who had said they would do their own interpreting? Suppose, as translated, nothing is developed that calls for counter proof, but the understanding these jurors had does — what opportunity has the defendant to even know that he requires testimony which he could obtain and which might change the result if produced? Though there be a presumption that the interpreter translated aright, is there also one that all other men agree to that translation ? We have indicated there is no machinery
One of the jurors who was permitted to serve, and one who said he would be controlled by the witness, said at first that he could not write English. Under some pressure, he modified it by saying that he could, but not very well, and that he never learned to read the English language much. What we have said just preceding this applies here. Nothing cited runs counter to our conclusions. State v. Smith, 124 Iowa 334, affirms sustaining a challenge interposed by the State as being no abuse of discretion. State v. Brown, 130 Iowa 57, holds merely that, if a juror is not shown to have formed or expressed such an opinion of guilt or innocence as to prevent rendering a true verdict on the evidence, the discretion of the court in overruling a challenge will not be interfered with.
“The entries made upon the hooks oí the plaintiff in this case furnished the best evidence of such charges. The testimony of Collins as to the contents of such entries was therefore inadmissible. * * * it is said in Elliot] on Evidence: ‘It is essential, however, that, upon referring to it, his recollection should be so refreshed that he can speak to the facts from memory; that is, after referring to it he should be able to testify from his own recollection.’ ”
“The particular facts which she stated are not admissible in* evidence, except when elicited in cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination, the practice has been merely to ask her whether she made complaint that such an outrage had been perpetrated upon her, and to receive only a simple yes or no.”
In State v. Egbert, 125 Iowa 443, we say:
“Of course, the fact of complaint by prosecutrix may be shown, and'no doubt as a witness she may testify that she recognized the defendant as the person who committed the crime, but what she said is not in itself competent evidence on the question of identity.”
But we have departed from these close limitations. We say, in State v. Bebb, 125 Iowa 494, 497, that complaint is not inadmissible because it discloses pain, grief, humiliation, indignation, mortification or resentment, directly occasioned by the outrage. And so of a statement that prosecutrix had pain in the stomach, across her back and in her throat. State v. Baker, 106 Iowa 99. In State v. Mitchell, 68 Iowa 116, at 118, we sustain receiving that prosecutrix told her that she had been abused and ravished. We said, in State v. Peterson, 110 Iowa 647, at 650, that complaint to the effect that defendant did assault or ravish complainant is admissible. It is admissible that defendant had ravished or had intercourse (State v. Watson, 81 Iowa 380); that defendant abused her without her consent (State v. Cook, 92 Iowa 483, at 486). In McMurrin v. Rigby, 80 Iowa 322, at 325, the complaint that prosecutrix “was hurt in the most brutal way anyone could be hurt,” was held to amount to no
The court permitted much testimony, which, under the most liberal of these, should clearly have been excluded. Sturm was permitted to say prosecutrix told him that two fellows whom she did not know came upon the place while the door was open and the screen closed; that the smaller of the two came to the screen door and asked if Korwes was at home, and was answered he had gone to town; that he asked for a drink of water; that she turned and went into another room, and they folloAved her; that then he returned to the car and the two men spoke together; that the men were very insolent, one Avent up to her and asked her to come into the granary; that she retreated, and he went up to her closer, and, all at once, he jumped against her and got her against the cob pile and got her by the legs and pulled her down and had his trousers open and exposed his private
But the question is not whether this should have been received, but whether its reception was cured. At the end of it, the court struck out all except “that she said to him that he did throw her down at the cob pile and tried to have sexual intercourse with her.” We incline to think that this much was not vulnerable to the objection that it improperly went into detail. Korwes was permitted to testify, over apt objection, prosecutrix told him that a fellow was there who asked for water; that she turned around to give him a glass of water; that he got pretty saucy and grabbed her; that she went into another room; that he followed her and grabbed her again; that she got away from him and then she walked out doors; that, at a time about a month later, defendant tried to get her into the barn. We are of opinion that this should have been excluded.
X. The law prescribes no standard for the strength of corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect. Does this case have anything that the law deems corroborative?
Moreover, it is the law of the case, by means of charge to the jury, that what the prosecutrix told others as to having been assaulted, and the testimony of these that she did so tell them, merely show the making of a complaint the failure to make which would weaken the weight of prosecutrix’s testimony; but that such evidence may not be considered “as the corroboration called for in the foregoing-instructions.”
10-b
In State v. Herrington, 147 Iowa 636, at 640:
“Defendant was a witness in his own behalf, and his own testimony was such as to leave no doubt of his guilt in the light of the other testimony in the case.”
In State v. Hogan, 145 Iowa 352, at 355, we find corroboration in the testimony given by defendant. In State v. Mitchell, 68 Iowa 116, 118, there were marks of violence upon prosecutrix, and defendant undertook to account for these injuries by a statement which was false.
So far as this defendant is concerned, his testimony corroborates nothing said by the prosecutrix, except that he did get a pail of water to put into his car, and that, while getting the water, he talked to her just once. Tigges says that going back with the pail to get water, getting the water and returning with it, did not take defendant away from him over 10 to 15 minutes. The testimony of Thompson we have held not to be admissible, but, waiving that, it is no more than that the defendant said on his preliminary examination that prosecutrix went to the door and into the house, and that he went up to the door and rapped on it. It may
We have found no case wherein what here is shown makes corroboration a jury question. In State v. Herrington, 147 Iowa 636, at 639, we say:
“The corroborating evidence in the case is unusually prominent. * * * * the defendant’s own testimony was abundant corroboration tending to connect him with the offense. In addition to that, was the testimony of his landlady who discovered the presence of the prosecutrix, and forbade the defendant from keeping her. There was considerable other testimony of greater or less weight, all of which confirmed the testimony already referred to.”
In State v. Hogan, 145 Iowa 352, at 355, we find corroboration in the testimony of the defendant himself, and added testimony of another, who testifies seeing defendant in such position with the prosecutrix that he reported the matter at once to the public officers. We find further corroboration in the testimony of the sheriff who made the arrest, and in a conversation of defendant detailed by another witness, and we' conclude the corroboration “was practically conclusive.” In State v. Dudley, 147 Iowa 645, the father saw defendant in a room with prosecutrix shortly after the alleged offense, the latter sitting on the bed with clothes “ruffled up” and her hair down over her face and eyes. In State v. McCausland, 137 Iowa 354, at 357, we said
There was a total failure of corroboration. See State v. Wheeler, 116 Iowa 212.
It is settled in this jurisdiction that, where the charge is assault with intent to rape, assault and battery need not be submitted unless the indictment charges force. But the indictment in this case is that defendant made the assault with intent to ravish “by force and against her will.” We think that included offenses must be submitted unless there is such failure of evidence to sustain them as that, if the prosecution were for the included offense, a verdict must be directed for the defendant. The question that remains is, therefore, whether the evidence so fails to prove force as that a verdict could be directed for defendant were ho charged with assault and battery. It certainly is not in that condition. The prosecutrix testifies in the plainest terms to the use of force, such as grasping her by the arms, throwing lie]’ down on a cob pile, holding her down there by force, proceeding at all times against her fighting and
11-a
As to the related question, whether the evidence was so conclusive of the major offense as that it was no error to stop with it, we have to say that enough appears to have left it fairly for the jury to find a lower degree of offense upon the evidence if so minded. She made no outcry, though Tigges was in easy reach of her voice while she was being assaulted, as she claims. After, according to her testimony, the evil intent of the defendant had been made plain, she, knowing that she could go into the house and lock the doors, did not do so, but remained where she could be assaulted. She could have calle'd help by telephone and did not. When the defendant left, he bade her good-bye, and she, according to her own story, answered: “Yes, good-bye, you hog.” In speaking of the assault to various persons, she showed no feeling and did not cry. She was seen immediately after the alleged assault, and, according to some of the testimony at least, was not breathing fast and showed no signs of excitement; did not appear to be scared; no disarrangement of her hair or flushing of her face was perceived, and she seemed perfectly calm. According to prosecutrix, both her outer clothing and that of defendant must have been badly stained with blood, yet all who saw them both, before the clothing was changed, saw no such stains.
■ To be sure, an assault with intent to commit rape is one with intent to commit a felony, but it does not follow that, therefore, it was error not to submit an assault with intent to commit felony generally. In the very nature of things, since an assault is charged which constitutes a felony, it excludes all other assaults to commit one.
For the error in ruling on challenges to jurors, receiving the testimony as to complaint made, that of the witness Thompson, holding there was corroboration, and failure to submit assault and battery, the cause must be — Reversed and, remanded.