State v. Beltz

• Decision Date: 03 May 1938
• Docket Number: 43915.
• Citation: 279 N.W. 386,225 Iowa 155
• Parties: STATE v. BELTZ.
• Court: Iowa Supreme Court

279 N.W. 386

225 Iowa 155

STATE v. BELTZ.

No. 43915.

Supreme Court of Iowa.

May 3, 1938

Appeal from District Court, Cass County; Earl Peters, Judge.

Defendant was charged with the crime of statutory rape, and convicted of the crime of assault with intent to commit rape, following which sentence of ten years' imprisonment was imposed. Defendant appeals.

Affirmed.

Harry B. Swan, of Atlantic, for appellant.

John H Mitchell, Atty. Gen., Buell McCash, Sp. Asst. Atty. Gen., and Roscoe S. Jones, Co. Atty., of Atlantic, for the State.

MILLER, Justice.

On October 6, 1936, the grand jury of Cass county returned an indictment against the defendant, in words and figures as follows, to wit: " That the said Clarence Beltz, in the County of Cass, State of Iowa, aforesaid, did unlawfully on or about the 16th day of September, A. D., 1936, in Cass County, Iowa, rape, carnally know and abuse Flossie Kloppenburg, she being a female child under the age of 16 years, contrary to the law made and provided, and against the peace and dignity of the State of Iowa." To this indictment the defendant entered his plea of not guilty, and following trial the jury returned a verdict finding the defendant guilty of the crime of assault with the intent to commit rape. Following the return of the verdict, and the overruling of a motion for new trial, judgment was pronounced by the terms of which the defendant was sentenced to ten years' imprisonment in the State Penitentiary, from which judgment defendant appeals.

The prosecutrix, Flossie Kloppenburg, was at the time of the trial fourteen years of age, and appellant some fifty years of age. Prosecutrix related in detail circumstances in connection with two alleged acts of intercourse between herself and appellant, one of which occurred during the month of September, 1936, at a home in the city of Atlantic, known as the Tranmer home. She testified that another act of intercourse took place between herself and appellant about a month after July 4, 1936, in appellant's automobile, near a schoolhouse some distance south and west of the city of Atlantic. According to her testimony, she and two younger sisters, Pearl and Margaret, got into appellant's car in Atlantic, drove with him to the schoolhouse, and upon arriving at the schoolhouse appellant asked the younger sisters to get out of the car, which they did; following which an act was indulged in. In addition to the two instances above set out, prosecutrix testified that she and appellant indulged in five other acts of intercourse, but gave no details as to time or place.

Pearl Kloppenburg, a sister of prosecutrix, age ten years testified that she, the prosecutrix, and the younger sister Margaret, all went riding with appellant, that they drove south from Atlantic on a dirt road, and then west to a schoolhouse. She further testified that upon arriving at the schoolhouse she and Margaret got out of the car to play, following which prosecutrix and appellant got out of the front seat of the car and into the back seat; and further testified that she then saw the appellant get on top of prosecutrix. She further testified that appellant told her and Margaret that if they would not tell he would give each of them a quarter, which he did. Her testimony is somewhat vague as to the time of this occurrence, but she did testify that she believed it was after the 4th of July, 1936.

P. P. Edwards, sheriff of Cass county, testified that he had known appellant for more than eight years; that he had a conversation with appellant about October 1, 1936, at which time appellant was under arrest, and at which conversation were present Mike Carey, Irmen Spence, and Andrew Johnson. In that conversation he asked appellant if he knew what he was charged with, to which appellant replied that he did, and stated, " I did, all right," and wherein appellant stated that he had had sexual intercourse with prosecutrix at least three times, the last time being " about three weeks ago," which he said took place " in his car out in the country, and that the little sisters were along." The witnesses Mike Carey, Andrew Johnson, and Irmen Spence testified to the same conversation as related by the witness Edwards.

Upon the conclusion of the state's testimony, appellant moved " that the State be required to elect which offense or which time they rely upon under this indictment," which motion was sustained, whereupon the state elected to rely upon the transaction at the schoolhouse south and west of Atlantic.

Div. I. Appellant contends that the court erred in allowing prosecutrix and her sister Pearl to testify as to the school house incident, claiming in support thereof that the indictment was based upon an offense occurring on September 16, 1936, at the Tranmer house in Atlantic. Examination of the indictment reveals that it accuses appellant of the commission of the crime " on or about September 16, 1936," but does not fix the place of the commission thereof other than " in Cass County, Iowa." It is apparent therefrom that the claim of appellant that the charge was based upon an occurrence taking place in the Tranmer home in Atlantic is without merit. As a result we are confronted only with the question of whether or not the admission of this testimony as to the schoolhouse incident the fore part of August. 1936, was inadmissible on account of the fact that the indictment fixed the date of the offense as " on or about Sept. 16, 1936." We are not confronted with a situation wherein appellant claims any alibi, and likewise the testimony as to the schoolhouse incident cannot be claimed to be a surprise. The minutes attached to the indictment contain reference to the schoolhouse incident, on the part of all the witnesses for the state. The law is well settled in this state that the date fixed in the indictment for the commission of a crime is not material, and that a conviction can be returned upon any date within the statute of limitations, if there is no fatal variance between the allegations of the indictment and the proof offered. State v. Kirkpatrick, 63 Iowa 554, 19 N.W. 660; State v. Briggs, 68 Iowa 416, 27 N.W. 358; State v. Speck, 202 Iowa 732, 210 N.W. 913; State v. Sangster, 196 Iowa 495, 192 N.W. 155; State v. Ellington, 200 Iowa 636, 204 N.W. 307. The application of this principle of law to the instant case establishes that this contention of appellant is without merit.

Div. II. Following the election of the state to rely upon the schoolhouse incident, appellant moved the court to strike all the testimony relative to the Tranmer house incident, for the reason that the same was incompetent, immaterial, and irrelevant, which motion was overruled, and appellant contends that the overruling thereof constituted error. Citation of authority is not required as to the general rule that evidence of other offenses, distinct from that alleged, may not be received. This general rule, however, is subject to well-established exceptions, and in so far as the same applies to the crime of statutory rape, the rule is well quoted in 16 Corpus Juris 608, 609, as follows:

" The general rule that proof of evidence of other crimes is inadmissible does not apply to other acts of sexual intercourse between the parties in statutory rape cases, that is, in prosecutions for rape on a female under age of consent, or on a woman imbecile, even though such other acts constitute separate and distinct crimes.

Provided they are not too remote in time or otherwise such other acts are relevant and admissible to show the lustful disposition of defendant, as well as to show the existence and continuance of the illicit relation, to characterize and explain the act charged, and to corroborate the testimony of the prosecutrix as to that act.

Evidence of acts prior to the one charged is quite generally held admissible, and, except in a few jurisdictions, evidence of subsequent acts is also admissible. * * * Also, except in some jurisdictions, in prosecutions for assault with intent to rape, proof of other acts or assaults is admitted to prove intent or motive."

An examination of the cases from this court reveals that the law of this state is in accord with the above-quoted statement from Corpus Juris, and that in a prosecution for rape, wherein the female is under the age of legal consent, proof of the repetition of the offense relied upon for conviction is admissible. State v. King, 117 Iowa 484, 91 N.W. 768, 770; State v. Forsythe, 99 Iowa 1, 68 N.W. 446; State v. Gaston, 96 Iowa 505, 65 N.W. 415; State v. Trusty, 122 Iowa 82, 97 N.W. 989; State v. Johnson, 133 Iowa 38, 110 N.W. 170.

In the case of State v. King, supra, defendant was accused of statutory rape, and therein prosecutrix testified that the defendant first had intercourse with her at her home, and that the act was repeated a week or ten days later in a grove. In that action error was assigned for the receiving of evidence of the second offense, and in commenting thereon the following language is used: " Ordinarily, evidence of other offenses, distinct from that alleged, may not be received; but to this rule there are well-established exceptions. One class of these is explained in State v Brady, 100 Iowa 191, 69 N.W. 290, 36 L.R.A. 693, 62 Am.St.Rep. 560. Another involves the relation and disposition of the parties toward each other. Thus in prosecution for adultery and incest, familiarity, and even acts of incontinence, may be proven after, as well as before, the commission of the offense charged. State v. Briggs, 68 Iowa 416, 27 N.W. 358; State v. More, 115 Iowa 178, 88 N.W. 322; State v. Hurd, 101 Iowa 391, 70 N.W. 613." This quoted portion is followed by quotations from other jurisdictions, following which the court again states as...