State v. Carpenter

• Decision Date: 08 March 1904
• Citation: 98 N.W. 775,124 Iowa 5
• Parties: THE STATE OF IOWA, Appellee, v. CHARLES CARPENTER, Appellant
• Court: Iowa Supreme Court

98 N.W. 775

124 Iowa 5

THE STATE OF IOWA, Appellee, v. CHARLES CARPENTER, Appellant

Supreme Court of Iowa, Des Moines

March 8, 1904

Appeal from Mahaska District Court.--HON. W. G. CLEMENTS, Judge.

DEFENDANT was indicted, tried, and convicted of the crime of rape committed, as was alleged, upon the person of one Mae Seibert. From the verdict, and the judgment rendered thereon defendant appeals.

Affirmed.

Dewey & Dewey and McCoy & McCoy, for appellant.

Chas W. Mullan, Atty. Gen.; James A. Devitt, Co. Atty., and L. C. Blanchard, for the State.

OPINION

DEEMER, C. J.

The assignments of error cover a wide range, and present nearly every question which could arise on a trial of this character. It will not be necessary to consider every point made, for most of them have already been determined adversely to appellant's contentions in former decisions of this court.

After the jury had been impaneled for the trial of the case, the prosecuting witness was placed upon the witness stand and asked a few preliminary questions, when defendant's counsel requested permission from the court to ask her a few questions. This request was granted, and, pursuant thereto, counsel asked her if she was in a family way. She responded that she was. She was then asked if she expected to give birth to a child in due time. The witness thereupon broke down and cried, and did not answer. Defendant's counsel thereupon gave notice that they would file a motion for a continuance. The witness, still crying, was permitted to leave the room until this motion could be made and disposed of. A motion for a continuance was then filed, to which the State made objections, and the motion was submitted and overruled. The witness was again called to the stand, and the trial was resumed. The ruling on the motion for a continuance is complained of. The grounds of the motion were the pregnancy of the prosecutrix, which it is said, was evident to all who saw her, and the further fact that she was likely to give birth to a child at any time, and that, if this occurred, it would conclusively appear that her condition was not due to defendant's alleged intercourse with her. Pregnancy of the prosecutrix has not heretofore been considered ground for a continuance. Her condition might, of course, appeal to a jury, and tend to enlist its sympathies; but the presence in the courtroom of a child born as the result, or as the claimed result, of a rape, would be quite as potent in this respect. There was in the motion no competent evidence as to when the child was likely to be born. Such as there was, was as visible to the jury as to the defendant who made the affidavit, and, if there was anything in this feature of the case, the defendant had the benefit thereof. There was no error in overruling the motion for a continuance. Indeed, the condition of the woman might well have been ground for proceeding with the trial at that particular time. The dangers incident to childbirth may well be taken into account when such applications as this are made. Defendant did not claim that he could produce any other or further evidence than that already referred to, even if a continuance should be granted. That the prosecutrix cried when asked some of the questions propounded to her was no ground for a continuance. It is not claimed that she was simulating grief. The ruling on the motion was undoubtedly correct.

II. One Rowe was called as a juror in the case. In answer to certain questions addressed to him by counsel for the State he said that he had both heard and read of the case, and that defendant had talked to him about it. He was further asked these questions, to which he made the answers indicated: "Q. From what you heard or read, did you form any opinion as to the guilt or innocence of the defendant? A. Yes, sir. Q. Do you have that opinion now? A. Yes, sir. Q. You are satisfied in your own mind that there is a bias in your mind one way or the other as to his guilt or innocence? A. No, sir; there is not. Q. Are you satisfied that you could sit as a juror, and arrive at a verdict in this case, based entirely upon the evidence and the instructions of the court, without being influenced in any manner by anything that you have heard or read in the case? A. Yes, sir; I could. Q. Do you know of any reason why you should not sit as a juror in this case? A. I do not." Defendant's counsel asked the juror no questions, but accepted him, and he was one of the jurors who sat in the case. After the verdict was returned, defendant, in his motion for a new trial, claimed that this juror was incompetent, in that he had both formed and expressed an opinion against him (defendant), and was unduly biased in the case. A great many affidavits were taken on this question, pro and con, but in our view of the case, these need not be considered. Were we to do so, we should not feel disposed to find contrary to the district court on the issue thus presented. Taking the answers given by the juror on his voir dire , as a whole we think it clearly appears that he had an opinion with reference to the guilt or innocence of the accused, and that it was in part, at least, based upon conversations had with the defendant himself. Defendant's counsel seemed content to take their chances on the juror, and did not ask him a single question regarding the nature or quality of his opinion, or call for anything touching his qualifications. The rule in this State now is that a failure to challenge a juror for cause as to his competency, and to examine him or other witnesses in support of the challenge, is a waiver of the right of challenge, although the fact of incompetency is not known to the party until after trial. State v. Pickett, 103 Iowa 714, 73 N.W. 346. That case seems to rule this one on the point now under consideration.

III. The prosecuting witness was permitted to detail other and prior assaults made upon her by the defendant, over the objections and protest of his counsel. Such testimony was admissible. State v. Trusty, 122 Iowa 82, 97 N.W. 989, and cases cited. This is a well-known exception to the general rule regarding testimony as to other offenses. The court properly instructed the jury as to the effect to be given this evidence; saying that it should only be considered on the question of the defendant's intent in doing the acts complained of, if he did them.

Many other rulings on the admission and rejection of testimony are complained of, some of which we shall notice. Complaints were made by the prosecutrix to her brother and mother the day the alleged offense is said to have been committed. Evidence of such complaint was properly received.

The prosecutrix, while being cross-examined by the defendant's counsel, disclosed certain matters which had not been called out by the county attorney, and she was asked if she said anything to the county attorney about them when being examined in chief. Objection thereto was sustained, and, as we think, properly. The jury knew the fact as well as any one.

She was also asked about a young man who came to her father's house to play an organ, to whom her parents had objected, but was not permitted to answer. There was no error in this ruling. Defendant did not claim that he was going to follow this up by showing improper conduct between the prosecutrix and this young man; hence the testimony was properly rejected. State v. McDonough, 104 Iowa 6, 73 N.W. 357.

It was claimed that a witness for the State, who was examined before a committing magistrate, changed his testimony when a witness upon the trial of this case, to the material disadvantage of the defendant; and he was asked on his cross-examination during the trial if he did not know that this matter, which was claimed to be new, was a very important fact. Objection to this was sustained. While it might well have been overruled, yet, as the method and manner of cross-examination is largely discretionary with the trial court, we should not interfere in the absence of some showing of abuse of discretion. That does not appear in this case.

Evidence as to the weight and condition of health of the prosecutrix was a material inquiry, and there was no error in permitting the State to show these matters.

Other rulings are complained of. Conceding some of them to have been erroneous, yet they were without prejudice, for the witnesses were each permitted to answer the very questions to which objections had been sustained, without any objection being interposed. This is particularly true as to the prosecutrix's appearance immediately after the occurrence, when she and her brother took refuge in a barn to protect themselves from a rainstorm. The whole matter was fully covered. And the same may be said with reference to certain hypothetical questions propounded to doctors who were examined both for the State and the defendant. A book on anatomy was offered in evidence as a part of the cross-examination of one of the State's witnesses. It was not offered for the purpose of impeaching him, but, rather to sustain him, and to get certain cuts and illustrations before the jury. With these cuts was some printed matter, which the trial court thought should not go to the jury. We do not know what this was; but presuming, as we must, that the trial court was correct in its ruling, in the absence of evidence to the contrary, we must assume that it was sufficient to justify the ruling. At any rate, the statements made in this book were not competent as substantive evidence.

Certain rulings on the admission of expert evidence are complained of. These seem, as a rule, to be correct, but the court directed the witnesses to make their answers short and to the point. One of them, in particular, was inclined to give an essay...