State v. Brown

• Decision Date: 22 April 1882
• Citation: 12 N.W. 318,58 Iowa 298
• Parties: THE STATE v. BROWN ET AL
• Court: Iowa Supreme Court

12 N.W. 318

58 Iowa 298

THE STATE v. BROWN ET AL

Supreme Court of Iowa, Des Moines

April 22, 1882

Appeal from Des Moines District Court.

THE defendants were jointly indicted for the crime of rape committed upon one Ellen McNamee. They were jointly tried and were severally found guilty of the crime of assault, and fined one hundred dollars. The defendants appeal.

REVERSED.

Hammack Howard & Virgin and D. N. Sprague, for appellants.

Smith McPherson, Attorney-general, for the State.

OPINION

DAY, J.

The testimony introduced on the part of the prosecution tends to establish the following facts: On the evening of May 30th 1880, the defendants, together in a buggy, with a led horse, came near the house of one Cuck Kelly. At that time, Ellen McNamee and John Kelly, a youth of about sixteen years of age, were coming south, in the direction of Cuck Kelly's house. The defendant, Darbyshire, asked the defendant, Brown, for the buggy to take Ellen McNamee buggy riding. Brown consented. Brown took the led horse and went with Cuck Kelly to the house. Darbyshire took the buggy and went back, and met the prosecutrix and John Kelly. Darbyshire asked the prosecutrix to take a buggy ride, and said he wanted to take her to a dance. She said she would not ride with him, but would walk with him to the house. Defendant got John Kelly to hold his horse, and he got out of the buggy. She put her arms around Kelly's neck, and the defendant pulled her away. Defendant got John Kelly to drive the buggy back, and he and the prosecutrix walked along together. They went south till they came close to a branch or slough, and there, the prosecutrix testifies, the defendant had intercourse with her. When they left there, she testifies he pulled her along to a straw stack, not far distant, and there had intercourse with her again. The defendant, Brown, remained at the house of Kelly about five minutes, and then rode on the led horse in the direction that Darbyshire had gone. He met John Kelly returning with the buggy, and got in the buggy and came back with him. In a few minutes he drove the buggy with the led horse back, and hitched them in a ravine near the straw stack. About the time that Darbyshire was leaving the straw stack, the prosecutrix saw Brown near it. She went around the straw stack and started across a rye field toward home, followed by the defendant Brown. As she was about to climb a fence he seized her and dragged her back, and had intercourse with her near the fence. At this time Darbyshire was driving away in the buggy. The prosecutrix testifies that she...