McMurrin v. Rigby

• Decision Date: 28 May 1890
• Citation: 80 Iowa 322,45 N.W. 877
• Parties: MCMURRIN v. RIGBY.
• Court: Iowa Supreme Court

80 Iowa 322

45 N.W. 877

MCMURRIN

v.RIGBY.

Supreme Court of Iowa.

May 28, 1890.

Appeal from district court, Cedar county; JAMES D. GIFFEN, Judge.

Action to recover damages for an alleged rape. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals.Wolf & Hanley, Wheeler & Moffett, and Boies, Husted & Boies, for appellant.

J. W. Jamison and Robert G. Cousins, for appellee.

ROBINSON, J.

The alleged wrong was committed on the 7th day of November, 1887. At that time the defendant was a man of mature years, with a wife and three children, and plaintiff was an unmarried woman, 19 years of age, employed in the family of defendant as a domestic. The evidence on the part of plaintiff tends to show that at the time in question she was engaged in doing the family washing in a small building which was separated by a short distance from the dwelling-house of defendant; that the room in which she was working was entered through a door in the east side, and was lighted by a window in the south side; that in the south-east corner of the room was an open stairway, without risers, which changed its direction above the third step; that during the absence of the family from home, and while plaintiff was engaged as stated, defendant entered the room, and compelled plaintiff, against her will, and despite her violent resistance, to submit to sexual intercourse with him on the stairway. In addition to their general verdict, the jury found specially that “defendant assaulted plaintiff, and had carnal connection with her by force, and against her will and resistance, as charged in her petition.”

1. A sister of plaintiff named Ella testified that in the afternoon of the day of the alleged assault she left her home for the purpose of visiting her sister; that she arrived at the dwelling of defendant at about half past 3 o'clock, and knocked twice at the front door without receiving any response; that she then went around the house towards the north, when she heard her sister's voice in the wash-house; that she went at once to the wash-house window, which was raised, and looked in; that defendant was then sitting on the steps holding her sister in his lap, and holding her hands behind her; that her sister was crying; that defendant told her sister, “Never to dare mention it,” and she said, “She would if she died for it;” that as soon as defendant let go her hands “she grabbed him by the nose;” that after she had been at the window “about a minute or so” defendant went out; that she then went in, and found her sister sitting on a block, crying, her underclothing partly on the floor, with blood on a portion of it, and her dress torn. The witness was then asked this question: “State whether, when you went into the room, while your sister was sitting there, she made any exclamation or statement as to any injury she had received;” and answered in the affirmative. She was then asked this question: “State whether your sister made any complaint to you at the time you went into the wash-house, and first saw her sitting on the block, of the injuries she had received. If so, state what complaint she made.” To this counsel for defendant stated that they did not object to the question so far as it asked witness whether plaintiff made complaint, but they objected to the question “so far as it asks the witness to state what she said with reference to her injuries, and how they were received, upon the ground that such declarations are incompetent, being in her own behalf by plaintiff, after the transaction complained of occurred.” The objection was overruled, and the witness answered: “She said she was hurt in the most brutal way any one could be hurt.” Appellant complains of the ruling which permitted that answer.

The rule adopted by this court in criminal prosecutions for rape is that laid down by Greenleaf, and cited in State v. Richards, 33 Iowa, 420, and State v. Clark, 69 Iowa, 294, 28 N. W. Rep. 606. Briefly stated, it is that, where the female injured is a witness, the fact that she made complaint of the injury may be shown, but not the particulars she stated. In State v. Mitchell, 68 Iowa, 118, 26 N. W. Rep. 44, it was said that the rule would permit the showing of the injury complained of, as that the complainant had been ravished. The plaintiff had testified before the answer under consideration was given in regard to the matter to which it related. The declarations given by the answer, placing upon it the construction most unfavorable to defendant, did not do more than to charge that plaintiff had been ravished, and therefore it is within the rule as explained in the case last cited.

Moreover, we think the declaration was admissible as a part of the res gestæ. It was made but a few moments after the alleged ravishment had been accomplished, and while declarant was under the influence of the mental excitement which it produced. It was made within such time after the act to which it referred, and under such circumstances, as to preclude the element of premeditation. Whart. Crim. Ev. § 263; State v. Jones, 64 Iowa, 353, 17 N. W. Rep. 911, and 20 N. W. Rep. 470; 1 Phil. Ev. 185; 1 Greenl. Ev. § 108; Insurance Co. v. Mosley, 8 Wall. 397. The rule of these authorities was recognized in Armil v. Railway Co., 70 Iowa, 131, 30 N. W. Rep. 42.

2. Plaintiff testified that in the struggle with defendant her left leg was thrust through the stairway, between two steps, in such a manner as to receive injuries, and that there were injuries to her wrists, and to portions of her body. She remained in the family of defendant, working as usual, from the time of the alleged assault to the 20th of the same month, when she went to her home, about four miles away, and there saw her mother. After plaintiff testified, her mother was called as a witness, and testified, without objection, that at the time last mentioned the plaintiff made complaint to her “about Rigby assaulting and ravishing her;” that there were then purple and blue marks on her wrists, and...