State v. Vaughn
187 Iowa 146
Iowa
1919
Check Treatment
Evans, J.

The prosecuting witness was a girl but a few weeks past 15 years of age. The defendant was a young man 23 years of age, and out on parole from the penitentiary. He was a witness in his own behalf. He testified to having had sexual intercourse with the prosecutrix on the evening of October 11, 1917, the date of the alleged rape, the one question in dispute being whether the intercourse was accomplished by force and against the will of the prosecutrix.

i. criminal law: evidence: opinion evidence. Dr. Davis testified, as a witness for the State, to an examination of the person of the prosecutrix on the day following the alleged rape. From such testimony it appeared that the vagina was swollen and bruised and torn and still bleeding; that there was blood found upon her clothes and body, from the corset to her stockings, and that it was not menstrual. Following such testimony, the record shows the following:

“Q. Was there anything there that indicated to you in any way, basing your answer on your experience and observation, that there had been willing intercourse? (Defendant objects as incompetent, irrelevant, immaterial, not a subject of expert testimony, and calling for the opinion *148and conclusion of the witness. Objection overruled, and defendant excepts.) A. No, I wouldn’t think that it was Avilling intercourse. (Defendant moves to strike out the answer as incompetent, an opinion and conclusion of the witness, and not a subject of expert testimony. Motion overruled. Defendant excepts.)”

Other similar questions and answers were' admitted.

2‘ tr?á“1IcourseTand eraf-uerroneous1" ^ evidence.11 oi The foregoing presents the one serious question in the case, and is presented as a ground of reversal. We deem it plain that the defendant’s objection to the question and his motion to strike the answer should have *3een sustained. It is strongly urged for State that the other competent evidence was so overwhelming and practically conclusive of the defendant’s guilt that the ruling herein noted should be deemed uonprejudicial. There is much to be said for the weight of the competent evidence as to the defendant’s guilt. We find nothing in the record, however, which can fairly be said to cure the effect of this particular erroneous ruling. The State should have been willing to rely on its competent evidence at the trial, and there was little excuse for its insistence upon evidence so manifestly improper. We feel bound to sustain the assignment. of error. The judgment of conviction must, therefore, be reversed, and a new trial ordered. — Reversed and remanded.

Lado, O. J., Preston and Salinger, JJ., concur.