State v. Bebb

• Decision Date: 27 October 1904
• Citation: 101 N.W. 189,125 Iowa 494
• Parties: STATE v. BEBB.
• Court: Iowa Supreme Court

125 Iowa 494

101 N.W. 189

STATE

v.BEBB.

Supreme Court of Iowa.

Oct. 27, 1904.

Appeal from District Court, Muscatine County; A. J. House, Judge.

Prosecution for rape, committed, as alleged, upon a female child under the age of 15 years. There was a verdict of guilty as charged, and judgment on the verdict. Defendant appeals. Reversed.Clymer A. Coldren and Jayne & Hoffman, for appellant.

Charles W. Mullan, Atty. Gen., and C. A. Van Vleck, Asst. Atty. Gen., for the State.

BISHOP, J.

The prosecutrix, being called as a witness for the state, testified that she was 12 years of age at the time of the assault alleged; that the crime was committed about September 1, 1901, and on the Bebb farm, where she was living with her parents--the latter being in the employ of the father of the defendant on such farm. Among other things, the prosecutrix was asked if she had made complaint to any one of the assault alleged to have been made upon her by defendant. To this the defendant interposed the general objection that the evidence sought to be elicited was incompetent and immaterial. The objection was overruled, and, we think, properly so. In cases of this kind, evidence that subsequent to the commission of the alleged offense complaint thereof was in fact made, while trenching upon general rules, has been held generally to be admissible. It is not considered that the fact of complaint forms a part of the res gestæ; on the contrary, the exception is allowed upon the theory that proof of the fact is proper to be considered as affecting the credibility of the prosecutrix as a witness; on the one hand tending to corroboration when the fact of complaint is made to appear, and on the other hand to the discredit of her evidence in the event no complaint is shown to have been made. State v. Wolf, 118 Iowa, 564, 92 N. W. 673;State v. Peterson, 110 Iowa, 647, 82 N. W. 329;State v. Mulkern, 85 Me. 106, 26 Atl. 1017;State v. Niles, 47 Vt. 82.

2. Counsel argue, however, that the complaint said to have been made was too remote, and for that reason was not entitled to any consideration. Conceding that defendant is in position to present the question in view of the record, the argument is not sound. We do not say that a complaint may not be so long delayed as to rob it of all force, and hence warrant a refusal to receive it in evidence. But that delay is fatal to the admissibility of the evidence is not true of necessity. Ordinarily, the fact of delay goes to the weight of the evidence only, and is, therefore, a subject of consideration for the jury. Consideration, for a moment, of the reason for the exception, will serve to make the point clear. The law takes note that within common experience, when an outrage of the character here in question has been committed, the instincts and emotions of womanly nature will prompt an outcry against the wrong committed and the perpetrator thereof, not only as an expression of grief, indignation, or resentment, but as calling for sympathy and assistance. Further, the law recognizes that in some instances it is possible that through timidity or fear a wronged woman may fail to make prompt disclosure. The law indulges, therefore, in the generous supposition that in the ordinary course of things a woman thus wronged will complain thereof as soon as opportunity offers, or at least when no longer controlled by conditions of restraint in character, as above referred to. State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519;Stevens v. People, 158 Ill. 121, 41 N. E. 856;Parker v. State, 67 Md. 329, 10 Atl. 219, 1 Am. St. Rep. 387. Accordingly the operation of the exception has been extended so far as to permit the introduction in evidence by the state of the fact that a complaint in character as indicated has been made; in other words, and to be exact, that, inspired by confidence in friends or others believed by her to be capable of sympathy and assistance, the woman had been prompted by her emotions, or her sense of wrong and indignation, to make revelation of the fact of the outrage committed upon her, and that, all circumstances considered, this was done within a reasonable time. The defendant may point out, therefore, the time when and the circumstances under which the same was made as affecting the value thereof for corroborative purposes. On the other hand, the state may introduce evidence to show why the complaint was not sooner made. State v. Tomlinson, 11 Iowa, 401;State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519;State v. Snider, 119 Iowa, 15, 91 N. W. 762.

3. No motion was made to strike out the evidence introduced in proof of complaint, but, after instructing the jury as to the necessity for corroboration of the...