State v. Altomari

• Citation: 201 N.W. 51,199 Iowa 43
• Decision Date: 11 December 1924
• Docket Number: No. 36151.,36151.
• Parties: STATE v. ALTOMARI.
• Court: United States State Supreme Court of Iowa

199 Iowa 43

201 N.W. 51

STATE

v.ALTOMARI.

No. 36151.

Supreme Court of Iowa.

Dec. 11, 1924.

Appeal from District Court, Polk County; Jos. E. Meyer, Judge.

Defendant, over 25 years of age, was indicted for rape, on Rosa De Angelo. Prosecutrix was about 15 years of age at the time of the transaction. Trial to a jury, who found defendant guilty of assault with intent to commit rape. Judgment was pronounced, and he appeals. Affirmed.C. C. Putnam, Wilson & Shaw and Tom K. Murrow, all of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and Vernon D. Seeburger, Co. Atty., Russell Jordan, Asst. Co. Atty., and Earl C. Mills, all of Des Moines, for the State.

PRESTON, J.

Prosecutrix and defendant are Italians. On a Sunday in June, 1922, prosecutrix, together with her cousin Mary, aged eight, and Lena, were returning home from a picture show in Des Moines, Iowa. Defendant and another were in an automobile and asked prosecutrix and her cousins to ride. They rode out to some woods in a park, and there, according to the testimony of prosecutrix, she was ravished by both men; that they put a cloth over her face, tying a handkerchief tight over her eyes; that they threw her to the ground. The details are too revolting to set out in print.

I. It is argued by appellant that the testimony of prosecutrix is unreliable because there are contradictions therein and that she refers repeatedly to “they” having committed an act, which, of necessity, could only have been committed by one, etc. We suppose that both could be convicted if they were aiding and abetting each other, even though only one had intercourse with her. But she testifies that both did. There may be some contradictions; but this is not to be wondered at, since she and some of the other witnesses were very young, were Italians, and an interpreter was used. Their evidence is not denied. No witnesses were used on behalf of the defendant. The weight of the evidence of the witnesses for the state was for the jury. The verdict has ample support in the testimony.

[1] II. The constitutionality of the statute, chapter 192, Acts of the 39th G. A., is vigorously attacked, and elaborately argued. This seems to be the point most relied upon by appellant. The rule is universal that the courts will not pass upon the constitutionality of a statute unless it is necessary to do so in the determination of a given case. We have held that under the circumstances of this case, and because of the age of the parties, the court is not required to pass upon the question. State v. Wrenn, 194 Iowa, 552, 557, 188 N. W. 697;Id., 263 U. S. 688, 44 S. Ct. 228, 68 L. Ed. 507. See, also, State v. Toland (Iowa) 200 N. W. 229.

[2] III. Some other matters of minor importance are discussed briefly. One is that Mary Izzolene and Fred Izzolene were permitted to testify over the objection that their names did not appear on the indictment. The names indorsed are Mary Tuzzeleni and Fred Tuzzeleni. It is true there is a slight variance in the spelling of the surname. However, it appears that it is pronounced in English as it is spelled in the indictment, and the name as it should be spelled is pronounced in the same way. It appears without dispute that these two were the identical persons who appeared before the grand jury and who testified. It is shown that they lived at the address given in the minutes before the grand jury, and that there was no person in Des Moines by the name of Tuzzeleni. There is no claim that the defendant was in any way misled or prejudiced by the fact that the witnesses' names were misspelled. In State v. Dale, 109 Iowa, 97, 100, 80 N. W. 208, 209, we said:

“The purpose of each is to inform the defendant what persons will be examined on behalf of the state, and what is expected to be proven by them. We have seen that an error as to the name or residence of a witness that does not mislead the defendant as to the identity of the person will not prevent the state from examining such witness, and for the same reason a mistake in stating the occupation of the witness that does not mislead the defendant should not prevent the examination. Whether the state was entitled to examine this witness under said notice was a question for the court, and full inquiry as to the occupation of the witness and defendant's acquaintance with him should have been permitted; and, if the court found that the defendant was informed by the notice that this witness would be examined, the examination should have been permitted, and, if the court found...