State v. Crouch
| Decision Date | 08 May 1906 |
| Citation | 130 Iowa 478,107 N.W. 173 |
| Parties | STATE v. CROUCH. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Palo Alto County; W. B. Quarton, Judge.
Defendant was indicted, tried, and convicted of the crime of rape, and from a judgment on the verdict appeals. Affirmed.C. E. Cohoon and George E. Clarke, for appellant.
Charles W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.
Defendant is charged with having committed a rape upon one Ellen Waite, she being of such imbecility of mind as to prevent effectual resistance. Whatever else may be said, defendant has no cause for complaint of his counsel. His case seems to have been unusually well tried, both in the district court and upon this appeal. We shall not consider every point presented, as to do so would unduly extend the opinion.
The indictment was demurred to upon the ground of being uncertain and void for duplicity. It charges that defendant made an assault upon the body and person of the prosecuting witness, with intent then and there to ravish and carnally know her, and that he did then and there ravish and carnally know the said Ellen Waite, she then and there being a female, naturally of such imbecility of mind as to prevent effectual resistance on her part. Claim is made that the charge is uncertain; that is to say as to whether the offense is intended to be brought under Code § 4756 which provides for rape, by force and against her will of a female over 15 years of age, or by having carnal knowledge of a female under 15 years of age, or under section 4758, which makes it rape for one to have intercourse with an imbecile. The same thought is also presented for appellant in the suggestion, that the indictment is bad for duplicity. There is nothing in either contention. The indictment charges an assault with intent to ravish and carnally know, and an actual ravishment and carnal knowledge of, a female naturally of such imbecility of mind, etc. Certain it is, that this does not charge carnal knowledge of a female under 15 years of age. It does charge an assault with intent to ravish and carnally know, and an actual ravishment and carnal knowledge of a female of such imbecility of mind as to prevent effectual resistance, etc. This clearly brings the offense under section 4758 of the Code. State v. Austin, 109 Iowa, 118, 80 N. W. 303;State v. Trusty, 122 Iowa, 82, 97 N. W. 989, and cases cited.
2. Before the case was reached for trial, defendant filed a petition for a change of venue, which was in the usual form, and was supported by an affidavit signed by five or more persons. The state filed affidavits in resistance, signed by 50 or more citizens of Palo Alto county. Some of the affiants were produced and cross-examined, and the whole matter was thoroughly investigated by the trial court, resulting in an order denying the petition. Complaint is made of the ruling. Such matters are largely within the discretion of the trial court having the case in hand, and this is peculiarly so where as here the affiants are before the court, and are personally examined and cross-examined. The very atmosphere in such cases throws light on the real situation; and we are not disposed in such cases to interfere unless there be a clear abuse of discretion. That does not appear here. The case is very different in its facts from those appearing in State v. Crafton, 89 Iowa, 109, 56 N. W. 257;State v. Billings, 77 Iowa, 423, 42 N. W. 456, and other like cases relied upon by appellant. It is more like State v. McDonough, 104 Iowa, 8, 73 N. W. 357;State v. Williams, 115 Iowa, 97, 88 N. W. 194; and State v. Weems, 96 Iowa, 426, 65 N. W. 387.
3. A juror called into the box for the trial was challenged by the state because of his inability to read, write, or understand the English language. The challenge was sustained, and of this defendant complains. This was also a matter resting peculiarly within the sound descretion of the trial court; and there is no such showing here as to justify our interference. Sprague v. Atlee, 81 Iowa, 1, 46 N. W. 756;Geiger v. Payne, 102 Iowa, 581, 69 N. W. 554, 71 N. W. 571;State v. Guidry, 28 La. Ann. 630. Of necessity, this question is primarily for the trial court; and it must be a strong case which will justify an appellate tribunal in interfering. Anson v. Dwight, 18 Iowa, 241. Defendant was in no manner prejudiced in having one excluded from the jury of even doubtful qualifications; and in many states it is held no ground for complaint, even if a challenge on the part of the state is erroneously sustained. Stephenson v. State, 110 Ind. 358, 11 N. E. 360, 59 Am. Rep. 216;State v. McKinney, 31 Kan. 570, 3 Pac. 356;State v. Cady, 80 Me. 413, 14 Atl. 940;State v. Kluseman, 53 Minn. 541, 55 N. W. 741. See, also, Geiger v. Payne, supra, which points strongly in the same direction. It is not necessary to so hold now, and we refer to these cases to show the trend of authority.
4. Defendant filed a motion to require the state to elect upon which charge of rape it would rely; and this was overruled. The ruling was correct. The charge was not double. See authorities cited in the first divison of this opinion. Also, State v. Scroggs, 123 Iowa, 649, 96 N. W. 723;State v. Anderson (Iowa) 101 N. W. 201;Farrell v. State (N. J. Sup.) 24 Atl. 723. The assault allegation was proper, and the implied allegation of force will be treated as surplusage.
5. The prosecuting witness was called and her competency to give testimony was immediately challenged by defendant's counsel. They also asked to examine her as to her competency. Instead of granting their request, it was overruled for the time being, and the county attorney was allowed to proceed to establish her competency. After he had conducted such examination as he pleased, defendant's counsel then took the witness in hand, and endeavored to establish her incompetency. After hearing the witness' examination, the trial court allowed her to be sworn, and she was examined as a witness against the defendant. Here again we have both a question of fact, and the discretion of the trial court to deal with. It was purely within the discretion of the trial court to say which side should first examine the witness as to her competency; and after hearing all the evidence the question of competency was so largely a fact question, and so peculiarly within the knowledge and discretion of the trial court, that we should not interfere, unless the record leaves no doubt as to the witness' incompetency. Of course an idiot is an incompetent witness; but an imbecile is not necessarily so. It is true that the indictment charges imbecility on the part of the prosecuting witness, but it is imbecility of a peculiar and particular nature which is charged. Surely the charge made in the indictment with reference to the imbecility of the prosecutrix, did not disqualify her as a witness. That question was for the court, under the usual test, to wit, ability to retain in memory events witnessed by the one whose competency is challenged, and to give him or her a knowledge of right and wrong. Walker v. State, 97 Ala. 85, 12 South. 83;Holcomb v. Holcomb, 28 Conn. 177; Coleman v. Com., 25 Grat. (Va.) 865, 23 Am. Rep. 711. For gross abuse of discretion only is an appellate court justified in interfering in such cases. State v. Severson, 78 Iowa, 653, 43 N. W. 533;State v. Enright, 90 Iowa, 523, 58 N. W. 901;Wheeler v. U. S., 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244;Williams v. State, 12 Tex. App. 127. See, also, Gore v. State (Ga.) 46 S. E. 671;Tucker v. Shaw (Ill.) 41 N. E. 914;State v. Juneau (Wis.) 59 N. W. 580, 24 L. R. A. 857, 43 Am. St. Rep. 877.
6. A witness was introduced, who testified to having seen defendant coming from the house where it is claimed prosecutrix was ravished, very near the time when the offense is said to have been committed. On cross-examination an attempt was made to shake the witness' recollections as to dates. On re-examination the witness was asked, in effect, if there was anything about the circumstance to which he had testified in chief, which made him suspicious or impressed it upon his mind. Objection to this was overruled. The ruling was unquestionably correct. The answer to the question was in part at least legitimate, but defendant moved to strike it as an entirety, for the same reasons as were urged against the question. This was overruled, as it should have been. The objectionable part of the answer was not asked to be stricken; and so long as part of it was good the motion to strike all was properly overruled.
7. Another witness was allowed to testify that some two years before the alleged ravishment, defendant many times turned the door knob to the door of a room which was occupied by the prosecutrix, while she was working for the defendant; and that defendant said then and at other times that he would kiss her, the prosecutrix. The witness said that this was a somewhat frequent occurrence while prosecutrix was working for the defendant. If not too remote, this testimony was clearly relevant and material. Previous conduct of defendant tending to show a lascivious disposition on his part toward the prosecutrix is admissible in a prosecution for sexual offense. State v. Trusty, 122 Iowa, 85, 97 N. W. 989;State v. Carpenter, 124 Iowa, 5, 98 N. W. 775. If these occurrences stood alone it might perhaps be said that they were too remote. But it appears that after prosecuting witness left defendant's employ, he, d...
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