194 Iowa 552 | Iowa | 1922
The errors and points relied upon by appellant relate to the sufficiency of the evidence and alleged errors in instructions; also to the constitutionality of Chapter 192, Acts of the Thirty-ninth General Assembly. It is thought by appellant that the act violates Section 6 of Article 1, Section 9 of Article 1, and Section 30 of Article 3, of the Constitution of Iowa, ¿nd the Fourteenth Amendment to the Constitution of the United States. The questions were raised by demurrer to' the indictment, by motion to direct a verdict of not guilty, by exceptions to the instructions given, by motion in arrest of judgment, and in the motion for new trial. This is the point most relied upon for reversal. Chapter 192, above referred to, provides:
“Section 1. [a] If'any person ravish and carnally know any female of the age of sixteen (16) years or over, by force or against her will, or [b] if any person under the age of twenty-five (25) years carnally know and abuse any female child under the age of sixteen (16) years, or [c] if any person over the age of twenty-five (25) years carnally know and abuse any female under the age of seventeen (17) years, he shall be imprisoned in the penitentiary for life or any term of years.”
Section 2 is a saving clause, to the effect that nothing in the act shall bar any prosecution for any crime committed in violation of Section 4756 of the Code, prior to the taking effect
The transaction in question is alleged to have taken place in September, 1921, after Chapter 192 took effect. The first subdivision defines rape in substantially the same language as does the first part of the repealed Section 4756, except that the age of consent is fixed at 16 years, instead of 15. The prosecu-trix, Ethel Bray, was under 16 years of age at the time of the alleged intercourse. It is not claimed that the intercourse was by force or against her will. As we understand it, defendant was about 30 years of age; but whether he is under or over 25 is not, in this ease, very material. The second subdivision, as we have quoted Chapter 192, has reference to a case where one who is under 25 years of age has carnal knowledge of a female child under the age of 16 years. Paragraph 3 has reference to a case where a person over 25 has carnal knowledge of a child under 17.
1. Appellant contends that Chapter 192, before referred to, is, as a whole, unconstitutional. The grounds of the objection, as stated in the demurrer, motion for verdict, and so on, may be stated in a somewhat condensed form as follows: That said chapter is contrary to the provisions of the Iowa Constitution before mentioned, in that said chapter is class legislation, arbitrary, unnatural, not uniform in its terms and application, and denies the defendant equal rights, privileges, and immunities under the Iowa Constitution, denies defendant his rights and liberty without due process of law, and abridges his rights and liberty and immunity, and does not extend to him equal protection in his rights; that it violates the Fourteenth Amendment to the Constitution of the United States for the same reasons ; and that it is discriminatory in its terms, provisions, and application, against the defendant. The grounds are amplified somewhat in the motion for verdict, wherein it is claimed, and it is argued, that the statute does not apply to all the citizens of the state of Iowa under like circumstances, makes the act of carnally knowing a female therein mentioned a crime for a man over 25 years, and not a crime for a man under 25 years to
The argument is that all these matters could have been and must have been considered by the legislature in enacting the statute complained of. As to whether a classification in a given case is arbitrary and unreasonable, and the discussion in regard thereto, the State cites State v. Fairmont Creamery Co., 153 Iowa 702, 706, and eases therein cited. The State also cites, to sustain its position on these matters, Central Lbr. Co. v. State
We deem it unnecessary, in this case, to determine whether the statute in question is constitutional in all its parts, or to discuss all the propositions argued by appellant in regard to classification, in so far as the same applies to the facts of this case. The indictment charges defendant with having had carnal knowledge of a female child under the age of 16 years. The evidence shows that Ethel Bray was under the age of 16, and necessarily she was under 17. The second division of the statute in question provides that, if any person under the age of 25 years carnally know and abuse any female under the age of 16 years, or if any person over the age of 25 years carnally know and abuse any female child under the age of 17 years, he shall be punished, etc. Under this provision, and under the indictment and the evidence, it would seem that the age of the male is immaterial, for the reason that all males under the age of 25 years would be held, and all males over the age of 25 years would be held. This being so, in so far as the females under the age of 16 are concerned, the statute simply provides that such age shall be the age of consent, and in such ease the statute is uniform in its application to all. Under the record in this
■ 2. Prosecutrix testifies that she retired at about 8 o’clock' in the evening of September 12th, in the girls ’ dormitory, went to sleep, and was awakened during the night by Father Wrenn, the defendant, who was shaking her. The defendant contends that he was not there at the time alleged. Evidence on his behalf tends to show that he retired about 11 o’clock that night, and did not leave the house until the next morning, about half past 7. The priest’s house, where defendant lived, is on the Avest of the half block; the church is a few feet east of that; and the school building is several feet east of the church. The parish grounds cover one-half block. The dormitory was on the third floor of the school building. We do not understand counsel for appellant to claim that it was not a jury question in regard to the defense of alibi. The court, in Instruction 17, instructed with reference to alibi. The complaint is in regard to the language of the instruction. The jury was told that an alibi, if proven, constitutes a complete defense, and entitles defendant to an acquittal; that the defense is as proper and legitimate as any other. A part of the instruction complained of by appellant is the language:
“Nevertheless, it is proper to say that this defense is recognized in law as one easily manufactured, and it will be your duty to examine the evidence with care and caution on this, as on every other branch of the ease, and to give such weight and credibility to it as it would seem to you entitled to receive. ’ ’
No cases are cited by appellant as to the alleged impropriety of such an instruction. It has been approved in many cases. State v. Rowland, 72 Iowa 327; State v. Blunt, 59 Iowa 468 ; State v. Watson, 102 Iowa 651; State v. Worthen, 124 Iowa 408; State v. Concord, 172 Iowa 467; State v. Minella, 177 Iowa 283; State v. Carey, 188 Iowa 1308.
“The burden of establishing an alibi is, by our law, upon •the defendant, who relies upon it, and the evidence introduced to sustain it should outweigh the evidence introduced by the State, tending to show that the defendant participated in the crime. But the defendant is not bound to establish such defense beyond a reasonable doubt. If, upon the whole case, the testimony before you raises in your minds a reasonable doubt that the defendant was present at the time and place in question, then it will be your duty to give him the benefit of that doubt, and acquit him. ’ ’
There was no error at this point.
3. In Instruction 20, the court gave the rule for weighing the testimony of defendant, who had testified as a witness. Complaint is made of this, but no cases are cited. The instruction has been approved in a number of cases. State v. Young, 104 Iowa 730; State v. Moelchen, 53 Iowa 310; State v. Sterrett, 71 Iowa 386; State v. Walker, 133 Iowa 489, 497; State v. Stuart, 190 Iowa 476; State v. Steidley, 135 Iowa 512.
4. Appellant contends that, because of the contradictory statements and impeachment of the prosecuting witness, and other circumstances in the case, her story should not be believed, and that it is improbable that the transaction took place, as claimed by the State. We shall see later that she is corroborated by . other evidence as to the transaction itself, and by witnesses who were present in the same room. Before going to the circumstances tending to impeach prosecutrix, we shall refer, as briefly as may be, to some other pertinent circumstances. It would be indelicate to state in the opinion the details of the acts testified to, and we shall endeavor to state the facts, without giving the exact language used by the witnesses. Prosecutrix testifies that her people are Catholics, and that she attended this school. Some of the undisputed facts are that defendant is a Catholic priest,
“Q. Did he say anything then? A. Yes. He said, ‘Won’f you let me in?’ and asked me why. Q. What did you say? A. I said, ‘Because you hurt me, and because I am afraid you will ruin me.’ Q. What then? A. After a little, he got up and buttoned up his trousers, coat, and vest. Just before getting up, he said, ‘I will come back here about 11:30 and see you.’ After he dressed, he stooped down and kissed me, and said ‘Good night.’ ”
Prosecutrix admits that she gave such testimony, and at least one of the parties then present gave testimony on that subject. She also testifies that, at that time and place, she told the parties present that, prior to September 12th:
‘ ‘ I went to the church and into the sacristy, to get a prayer •book and rosary blessed, and when I went in, he kissed me and put his arms around me; told me to lie down. He said he wanted to touch me, and I got down. Q. And did you know what it meant when the bishop swore you to tell the truth, the same as you do now? A. Yes, sir. Q. Aren’t you mistaken
Nora Derocher, 14, testifying for the State, says of the transaction of September 12th that the girls went to bed about 8 o’clock; that all the girls were in the same room; that some of the girls were on small cots.
“Ethel Bray’s bed and my bed were about four or five feet from each other. Bita McCarthy slept at the foot of Ethel’s bed, — the head of her bed at the foot of Ethel’s. We went to sleep about 8 o’clock, and I don’t know just what woke me up during the night; but when I woke up, I saw a flash. A match Avas lit. I saw the flash of light, and I saw Father Wrenn looking right over Bita McCarthy’s bed, and he was holding the match and looking at Bita’s head, — just looking doAvn, to see AArho was in that bed. There was a light in the hall; it made just a small light in the room. When I first saw Father Wrenn, I shut my eyes; then turned and opened them again, and was looking towards the hall; and when I saw him again, he had his coat off, and threw it on the floor, unbuttoned his collar and threw it on the floor; and then I turned over, and closed my eyes. He Avent over to Ethel’s bed, after the match burned a little while. When I opened my eyes, after closing them, the party in the room stood right at Ethel’s bed. I heard talking right at Ethel’s bed. He said he loved Ethel Avith all his heart, and would give up the whole world for her, and something about her folks, and communion, and what he did there, and Avanted her to come Avith him; and I heard Ethel say, ‘ Ouch, that hurts; ’ and he said, ‘No, it don’t.’ He was in the room 15 or 20 minutes, and Avhen he Avent out, he stumbled over a pail in the middle of the room, which we use if Ave have to get up in the night. I heard Sister Baymond get up, Avhen this happened.”
This witness also says:
“Sister Baymond called me the next morning, and then she called Sister Angeline; and I told them I was sick, and kneAY Avho was in the dormitory. Tcouldn’t eat any breakfast, and wanted to call mamma on the phone. Sister Angeline wanted to know what for, and I told her I was sick, and she Avanted to know Avhat was the matter with me. She said, ‘ Didn’t you sleep.last night?’ and I said, ‘No, sister;’ and she made
Sister Raymond testifies of the transaction that night:
“We never had any trouble about anyone getting into the building, — no one ever bothered us; and sometimes we left the doors open, — not purposely; but I locked the door to the fire escape that night, but it was open the next morning, and I do not know how it was opened. * * * The other four girls in the room were younger than Ethel and Nora. An electric light was in the hall that night, but it did not reflect very much in the girls ’ dormitory, but I think I could distinguish a figure moving around. I was awakened by someone whispering in the girls’ dormitory, and thought the children were talking; then a water pail was kicked over, and I got up, looked out of my door, and saw a man outside the dormitory. I could distinguish the color of the clothing, and that is as far as I looked. I was paralyzed with fright, as I didn’t expect he would go into the children’s dormitory, and I didn’t know what was the matter or who the man would be, at first; I didn’t know what to think. He Avent out, and I thought the children would be all right till morning, and I went and locked the door. He came out of the girls’ dormitory in the hall, went into the boys’ dormitory and down the fire escape; but I did not see his face, and am unable to identify him. I cannot say Avhether his figure was that of a boy or a man; but from the size of his feet, he was not a boy. ’ ’
Ethel Bray testifies of the transaction the night of September 12th: that she retired about 8 o’clock; that Nora Deroeher went to bed at the same time; that there was nothing between the two beds.
“We slept on single cots or small single beds. I went to sleep, and Avas aAA'akened during the night by Father Wrenn, shaking me; but he said nothing to me, and I said nothing to him. He took off his coat and collar, and got into bed Avith me, and he loved me; said he would give up the world for me; put his arms around me, kissed me, shoAved affection for me. I saAV him unbutton his trousers after he got into bed. He asked me if I would go away with him, if he had a sum of money.”
She testifies to the intercourse and penetration. She says further that defendant AA'as there about 15 or 20 minutes; that
From the foregoing, it will be seen that prosecutrix did make contradictory statements. These were properly admitted as impeaching. As said, she is corroborated by other witnesses who were present at the time of the transaction. She may have been, and doubtless was, more or less embarrassed and ashamed, when she appeared before the bishop and Father McCarthy. She may have had a feeling of fear or awe in appearing before the high officers of the church with a story of this character. The purpose of her going to Sioux City with her parents was to secure the removal of the defendant from the Akron parish. It may have been thought that the removal could be secured by relating other circumstances, showing familiarities and liberties, without her stating that the completed act was done. Naturally, the officers of the church-before whom she appeared would not wish to have a priest under them doing the things charged against the defendant. On the other hand, they may have considered that, if such a charge as made by plaintiff was established, it might be injurious to the church organization. In either event, the matter could be, with propriety, investigated, and if defendant was doing the things charged against him, the matter could, with equal propriety, be presented to the bishop, in order to secure defendant’s removal. Of course, this is not the question in this case. The question is in regard to her contradictory statements; and we have suggested some of the matters that occur to us which may have been considered by the jury in weighing her testimony and the testimony of some of the other witnesses. Though there were contradictions in the testimony of prosecutrix, and impeaching circumstances, her testimony was that given on the trial of the case before the jury; and her credibility and the weight to be given to her testimony, notwithstanding the impeachment, were for the jury. State v.
5. Finally, it is contended that the court erred in failing to instruct the jury regarding the impeaching testimony offered relative to the evidence of prosecuting witness. The court instructed the jury generally as to weighing the testimony of the different witnesses. No instruction was asked by the defendant on this subject. It would have been proper enough had the trial court given an instruction on the subject; but under the circumstances, the failure to do so is not reversible error.
"We discover no reversible error in the record. The judgment is — Affirmed.