State v. Ashurst, 40060.
| Decision Date | 23 June 1930 |
| Docket Number | No. 40060.,40060. |
| Citation | 210 Iowa 719,231 N.W. 319 |
| Parties | STATE v. ASHURST. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ringgold County; H. H. Carter, Judge.
The defendant was indicted in the district court for the crime of statutory rape. He was tried to a jury and convicted. Sentence was imposed accordingly, and the defendant appeals from the judgment.
Reversed.Lewis & Lewis and Spence & Beard, all of Mt. Ayr, for appellant.
John Fletcher, Atty. Gen., and A. I. Smith, Co. Atty., of Mt. Ayr, for the State.
It is charged in the indictment that the defendant-appellant, on or about March 10, 1928, “wilfully and feloniously” had sexual intercourse with and “carnally” knew and abused one Annabelle Ashurst, “a female child under the age of sixteen years.”
To this indictment the defendant pleaded not guilty. After a trial to the jury, during which evidence was introduced by both the state and the appellant, as defendant, a verdict of guilty was returned, and the appellant was sentenced to serve an indeterminate term in the state penitentiary of not more than twenty years.
Appellant sets forth twelve grounds for reversal, but we find it necessary to consider only the one which relates to the insufficient corroboration of the prosecutrix. Under the statute it is essential that there be corroboration which tends to connect the defendant with the commission of the offense. Section 13900, 1927 Code.
State v. Lamberti, 200 Iowa, 1241 (local citation, 1244), 206 N. W. 128, 129.
[1] Mere opportunity is not enough to supply the corroboration required by statute. State v. Carter, 196 Iowa, 738, 195 N. W. 215. Corroboration must be such as will tend “to single out and designate the defendant as the guilty one.” State v. Greiner, 203 Iowa, 248 (local citation, 250), 212 N. W. 465, 466. In other words, to put the thought in the language of the statute, the corroborating evidence or circumstances must tend “to connect the defendant with the commission of the offense.”
Claim is made by the appellant that the record in the case at bar does not contain such corroborating evidence. That is the question for determination. A review of the material facts and circumstances at this juncture is necessary.
Bert Ashurst, the appellant, owns a farm in Ringgold county, near the city limits of Mount Ayr. On this farm appellant and his wife resided together for many years. While thus living on the farm, and because no children were born to them, they desired to adopt two little girls. For that purpose they applied to the Children's Home Society of Des Moines. Responding to the request of appellant and his wife, the Children's Home, on or about April 2, 1923, first placed the prosecutrix, Annabelle, and later her sister, Myrtle, in appellant's home. These children had been released by their natural father to the Children's Home on September 22, 1922. After remaining in appellant's home for several weeks on probation, Annabelle and Myrtle were legally adopted by appellant and his wife October 1, 1923. Henceforth both girls were cared for by appellant and his wife on the farm aforesaid, as if they were the natural children of this couple. Myrtle, at the time named in the indictment, was about twelve years old, while Annabelle then was fourteen or fifteen years of age.
Annabelle, the prosecutrix, was not always obedient, and appellant and his wife had difficulty in controlling her. Nora Ashurst, appellant's wife, died August 15, 1927, survived by her husband and the two adopted children. Subsequent to the death of his wife appellant obtained different housekeepers to assist him in caring for the girls, and continued living with the children on the said farm. First appellant's mother came into the home and remained there for several months. Later Mrs. W. E. Zack kept house for appellant and his adopted children, until about January 15, 1928. Then Miss Ada Whisler, a school teacher, took charge of the household, and, according to her testimony, remained with the family until some time in August, 1928.
Apparently the girls did not do good work at school, and they were constantly reprimanded by their father. The prosecutrix became indiscreet in her association with various men, and confessed to the appellant that she had illicit relations with at least one of them. Because of Annabelle's conduct in this regard, appellant protested and attempted to make her understand the wrong of such actions. Such is a brief preliminary history of appellant and Annabelle, the prosecutrix.
It is claimed by the state that the appellant had sexual intercourse with his adopted daughter. Annabelle, on or about March 10, 1928. Proof of the charge is limited to the testimony of Annabelle. Support and corroboration of Annabelle's testimony, if any there is, must be found in the statements and declarations of Myrtle. No reliance is made upon any other evidence or circumstance by the state. Many witnesses, including at least one woman who taught Annabelle in the public schools, testified that her reputation in the community for truth and veracity was bad. According to Annabelle in her final testimony, after being called to the witness stand for the second time, illicit relations between herself and foster father continued over a period of many months. When before the grand jury, however, Annabelle testified that there had been only three occasions when the appellant was unduly intimate with her. Thus she testified when first put upon the witness stand during the trial in the court below. She was recalled the second time, however, and made the statement previously suggested. Each housekeeper aforesaid testified that appellant at all times conducted himself properly, and was not in any way indiscreet in the presence of Annabelle.
[2][3] Claim is made by Annabelle that appellant committed the offense named in the indictment at his home during March, 1928. Ada Whisler, the housekeeper before named,...
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