State v. Blackburn

• Decision Date: 14 January 1908
• Citation: 114 N.W. 531,136 Iowa 743
• Parties: STATE v. BLACKBURN.
• Court: Iowa Supreme Court

136 Iowa 743

114 N.W. 531

STATE

v.BLACKBURN.

Supreme Court of Iowa.

Jan. 14, 1908.

Appeal from District Court, Marshall County; G. W. Burnham, Judge.

The defendant was convicted of having committed rape, and appeals. Reversed.

For former opinion, see 110 N. W. 275.

J. L. Carney, for appellant.

H. W. Byers, Atty. Gen., for the State.

LADD, C. J.

The offense is alleged to have been committed August 12, 1902, and the prosecutrix attained the age of 15 years October 12th of the same year. She gave birth to a child June 7, 1903, or 299 days after her alleged connection with the defendant. Her testimony was, in substance, that her home was at Marshalltown, and that she had gone to Clemons on that day to visit a girl friend, who met her at the train; that they then went riding; that later in the evening her friend left for the buggy of an acquaintance, and defendant, to whom prosecutrix had been introduced shortly before, got into the buggy with her; that they rode together a short time, when, at his solicitation, but by mutual consent, they drove to the roadside and indulged in sexual intercourse on the greensward, though she was then having her menses; that during her week's stay she saw him several times, but not as a suitor or alone, and only once thereafter in the street of Marshalltown, and that she had never had sexual intercourse with any one else.

1. The child born to prosecutrix was normally developed, and the evidence on the part of the state was, in substance, that the usual period of gestation varies from 275 to 280 days, that it could extend to 300 days, but that this was so unusual as to be improbable. Physicians called by defendant agreed as to the usual period, but were of opinion that, as sexual intercourse occurred during the menstrual period, the time of gestation did not exceed 280 days, and could not have been 299 days. This evidence was admissible; for, if the birth of the child occurred within a possible period of gestation after the alleged connection, this tended to corroborate her story that intercourse happened at the date fixed upon by her. Whether the period might have been 299 days was peculiarly for the determination of the jury. See Kesselring v. Hummer, 130 Iowa, 145, 106 N. W. 501.

2. After Dr. Conaway had testified in behalf of defendant as above stated, counsel for the state in cross-examination inquired concerning text-books written by Garrigues and Parvin. He testified that the work of the latter on obstetrics was standard authority, but of no more value in opinions expressed than those of an individual with like opportunities of observation. He was then asked: “Now, is it not announced in the leading text-books of the country and by leading lecturers on the subject, such as Garrigues and Parvin, that the length of gestation varies from 220 to 320 days from intercourse to the birth of the child? A. I don't know anything about the first authority you name there. I take issue with the second one on that proposition. Q. You take issue with the second man on that? If all the books in the country say that and lecturers, you take issue with them, do you? A. I take issue with the books and lecturers that say that just the same. Q. Simply because in your experience you have not found in your practice anything of that kind, is that why you take issue with them? A. I make the statement simply because of the fact that my experience says that what they say is not true. Q. So you think your experience is more valuable do you than the experiences and collected data of a large number of hospitals and of a great many learned authors? Do you assume that your experience is much better than theirs? A. It fixes my opinion much more firmly in my own mind than theirs; yes, sir. I don't know Winkle as an authority. I have heard of another you mention, but have not read him. Q. Now, he reports cases where the limit of the duration has been as high as 320 days, does he not? A. I know nothing about the authority mentioned or what he says. There is a chapter in some books on obstetrics devoted to the long duration of pregnancy, but not in all. Q. So, regardless of the fact that it is generally treated upon, and regardless of the fact that eminent authorities announce the rule that the period will vary from 220 to 320 days, you say that that thing is impossible? A. You cannot find a case in any of those authorities in which they give.” Here he was reminded by the court that the question was a little different, and on motion the answer stricken. The question was repeated, and he answered: “I know of no authority that makes such a statement.” He was again reminded that the question did not ask him if he knew, and upon his statement that he did not understand was instructed in making answer to assume that the authorities so reported when he replied that the authorities did not do so. Again, he was directed to so assume, and finally answered, after more parley, by saying: “I have answered that by saying it is impossible.” Appropriate objections were interposed and overruled, apparently on the theory suggested in rulings on a similar line of inquiry as to whether conception may occur as long as four to six weeks after intercourse; that the examination was proper as testing the learning and skill of the doctor. The manifest purpose, however, as plainly appears, was to get the thought before the jury that all medical authorities disagreed with the witness, even though he persistently denied this, and was compelled to make answers on that assumption. There had been no proof that any or all the authorities, nor had he so stated, were as assumed, and yet this witness was put in the attitude of arraying himself against the writers on the subject, and this with the approval of the court. He had not alluded to any authorities on his direct examination as the witness had in Cronk v. Wabash R. Co., 123 Iowa, 349, 98 N. W. 884; nor had he based his opinion on what he had learned from the books, as in State v. Donovan, 128 Iowa, 44, 102 N. W. 791, and for this reason asked as in Hutchinson v. State, 19 Neb. 262, 27 N. W. 113, what the several authorities taught. Medical works are not admissable in evidence, and, when not alluded to in direct examination, cannot be gotten before the jury, over objection, on cross-examination, nor can this be done by indirection in assuming their supposed teachings. State v. Thompson, 127 Iowa, 440, 103 N. W. 377;Marshall v. Brown, 50 Mich. 148, 15 N. W. 55. In Conn. Life Ins. Co. v. Ellis, 89 Ill. 512, the expert had said that he had read text-books in order to be able to state why he had diagnosed the case as delirium tremens, and paragraphs were read to him and inquiry was made as to whether he agreed with authors. This was approved on the ground that he had assumed to be familiar with the authors, and in no better way could his knowledge on the subject be tested. Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 679, was distinguished from the last case, in that the physician had neither quoted from nor referred to any book, and reading from text-books by him and asking if he agreed with them was adjudged error; the court saying: “Where a witness says a thing or a theory is so because a book says so, and the book, on being produced, is discovered to say directly to the...