State v. Brewster

• Decision Date: 20 November 1928
• Docket Number: 39361
• Citation: State v. Brewster, 208 Iowa 122, 222 N.W. 6 (Iowa 1928)
• Parties: STATE OF IOWA, Appellee, v. CHARLES BREWSTER, Appellant
• Court: Iowa Supreme Court

222 N.W. 6

208 Iowa 122

STATE OF IOWA, Appellee, v. CHARLES BREWSTER, Appellant

No. 39361

Supreme Court of Iowa, Des Moines

November 20, 1928

REHEARING DENIED APRIL 5, 1929.

Appeal from Polk District Court.--F. S. SHANKLAND, Judge.

The defendant appeals from a conviction of a charge of rape.The material facts are stated in the opinion.

Affirmed.

Baker & Doran and John E. Holmes, for appellant.

John Fletcher, Attorney-general, and Carl S. Missildine, County Attorney, for appellee.

WAGNERJ. STEVENS, C. J., and EVANS, FAVILLE, and KINDIG, JJ concur.

OPINION

WAGNER, J.

The charge against the defendant is that of rape, alleged to have been committed upon the prosecutrix, forcibly and against her will.

One of the contentions of the appellant is that the place of the commission of the offense was not established by the evidence as being in Polk County.One of the witnesses for the State testified, in substance, that the place of the crime was about one mile west of Fort Des Moines, and that it was about two blocks south and one block east of the paved road which runs in a westerly direction from said fort, and that she knows that said place is in Polk County.Thus, the venue is clearly established as being in Polk County, and the aforesaid contention of the defendant is devoid of merit.

The defendant complains that the evidence is insufficient to support the verdict.The crime charged involves force on the part of the assailant, and the utmost resistance on the part of the prosecutrix.State v. Ward,73 Iowa 532, 35 N.W. 617.The phrase "the utmost resistance" is a relative one, and the resistance may be more violent and prolonged by one woman than by another, or in one set of attending physical circumstances than in another; but whatever the circumstances may be, there must be the greatest effort of which the woman is capable, to foil the assailant and preserve the sanctity of her person.State v. Morrison,189 Iowa 1027, 179 N.W. 321.

"From the authorities as a whole, it fairly appears (1) that resistance by the female is an issue in a trial for rape only as it is involved in the necessary proof of her want of consent; (2) that, to show such unwillingness, her resistance must be proportionate to the occasion, under the circumstances, and at the time of the act complained of: that is to say, in ordinary cases, there must be resistance to the utmost, or at least to the extent of her ability * * *."State v. Cowing,99 Minn. 123(9 Ann. Cas. 566, 108 N.W. 851).

Therefore, if, under the aforesaid rules of law, the jury were warranted in finding force on the part of the defendant, and resistance on the part of the prosecutrix to the extent of her ability, under the existing facts and circumstances, then the evidence is sufficient to support the verdict.There is no question of the want of evidence corroborative of the prosecutrix, tending to connect the defendant with the offense.

The prosecutrix testified as to the completed act of sexual intercourse, while the defendant denies the same.That question was certainly for the determination of the jury.

We have read the record with care, and no useful purpose would be served by setting out the evidence in detail.It is sufficient to say that, from the facts, as revealed by the record, the jury could well find, as they did, force on the part of the defendant, and resistance on the part of the prosecutrix to the extent of her ability, and by reason of such resistance, lack of consent by her.

The defendant lays great stress, in his argument, on the fact that the dress of the prosecutrix was not torn.It is apparent that, in cases of forcible rape, with the dresses the length which is in accordance with the fashion of to-day, they are not nearly so apt to become torn as in the olden days, when Dame Fashion brought the dresses to the ankles.What is said about torn garments in the early cases when the long dress prevailed, can hardly be applicable to the present-day fashions.The untorn short dress of the prosecutrix is not sufficient to overcome all of the other evidence tending to establish the guilt of a depraved character in making a forcible attack upon the virtue of womanhood.

The evidence in the case is much stronger as against the defendant than was the testimony in State v. Geier,184 Iowa 874, 167 N.W. 186, wherein we held the evidence sufficient for conviction.The defendant relies upon Reinwaldt v. Hulsebus(Iowa), 195 N.W. 216(not officially reported), and the cases therein cited; and so does the State.It is true that in that casewe disregarded such expressions as "pulled me" and "dragged me," and said that such expressions should not be permitted either to take the place of evidence of facts or to override the detailed facts described by the witness.It is obvious from the record of the evidence that the instant case is clearly distinguishable from that case: for, all such expressions being disregarded, there was evidence that the prosecutrix in this case screamed for help and fought with her hands; that he had forced her legs apart, and, over all protestations and pleadings, he held his hand over her mouth and nose, smothered and overpowered her, and accomplished his evil purpose.Under the facts and circumstances of this case, it was for the jury to say whether the act was committed by force, and against every resistance which, under the circumstances, she was capable of rendering.

The sole remaining complaint of the appellant is that the county attorney, in his closing argument to the jury, was guilty of misconduct which was...