State v. Desmond

• Decision Date: 03 October 1899
• Parties: STATE v. DESMOND.
• Court: Iowa Supreme Court

109 Iowa 72

80 N.W. 214

STATE

v.DESMOND.

Supreme Court of Iowa.

Oct. 3, 1899.

Appeal from district court, Poweshiek county; A. R. Dewey, Judge.

The defendant was convicted of the crime of assault with intent to commit rape, and from the judgment, which required that he be imprisoned in the state penitentiary at Ft. Madison for the term of three years, he appeals. Reversed.S. R. Clute, for appellant.

Milton Remley, Atty. Gen., and Chas. A. Van Vleck, for the State.

ROBINSON, C. J.

The indictment charges that “the said C. H. Desmond on the 8th day of January, 1898, did in and upon one Ora Redman, a female child under the age of fifteen years, to wit, eleven years of age, unlawfully, willfully, and feloniously make an assault, with the felonious intent then and there to willfully, unlawfully, and feloniously ravish, carnally know, and abuse the said Ora Redman by force and against her will, contrary to law.” The evidence for the state tends to show that the facts involved in the alleged assault were substantially as follows: At the time specified in the indictment, and for several days prior thereto, the defendant and his wife and another man and his wife were engaged in giving free public entertainments in a room used as a hall in the town of Searsboro. The entertainments included music, and discourses upon diseases, and were designed to advertise and aid in the sale of medicines. In the afternoon of the date specified, an entertainment was given, which commenced at half past 2 o'clock and closed at about 4 o'clock. The defendant announced that a silver pitcher would be drawn at the meeting in the evening, and distributed tickets to those present. The audience present consisted of a few adults and about 20 children. Among the latter were Ora Redman, aged 11 years, and Edith Wright and Grace Cotter, each of whom was 13 years of age. The defendant gave them tickets, and promised to give them others if they would stay longer. They remained as requested until all persons but themselves and the defendant had left the room. The room was about 20 by 40 feet in size, and extended from the street eastward. At the east end was a platform 6 or 8 feet in width, which extended from the south wall northward to a point 4 feet from the north wall. A curtain, fastened to a wire near the ceiling, dropped to the platform about 1 foot back of its front edge, but did not extend within 4 feet of the south wall. When the girls named were asked to remain, they seated themselves on the platform, with their backs to the curtain and their faces towards the public entrance and street. At that time the defendant was near the door, engaged with tickets. The prosecutrix states that, after she and her companions had been at the platform about 5 minutes, he told Edith to go behind the curtain, and she did so, remaining there with the defendant not more than 10 minutes; that they came out together, and the defendant told Grace to go behind the curtain; she went as requested, and was there with the defendant 25 minutes; that Ora could not see either of her companions nor the defendant when they were behind the curtain, nor understand anything that was said, although she heard talking. When Edith came out, she resumed her seat near Ora, and remained there a part of the time Grace was behind the curtain. At that time Edith told Ora that after she went behind the curtain she sat upon a chair; that the defendant told her to lie down on the floor, and she then jumped out. Edith finally left the room, asking Ora to go with her, but she did not do so. About 10 minutes later Grace came from behind the curtain, and went out of the room without speaking to Ora. The defendant then told Ora to go upon the platform, and she did so. We need not repeat all that Ora said in regard to what then occurred. It is sufficient to say that he looked at her ticket and gave her another; that he sat down, and asked her to sit on his lap; that she walked to him and sat on one of his knees; that he made an indecent exposure of his person, and put his hands under her clothing on one of her limbs just above the knee, and that she then left him and went out of the room; that he did not try to detain her. The girls complained at once of the treatment they had received, and search was made for the defendant. He was finally found, about 5 o'clock, in the room where the transaction described occurred, seated in a chair on the platform back of the curtain, in a drunken stupor. On his person was found an empty three–ounce vial, at his feet was a bottle in which remained a small quantity of gin, and back of the platform was a gallon jug two–thirds full of port wine. Efforts were made to rouse him, but his condition remained almost unchanged for nearly two hours. During that time he did not recognize his wife, nor comprehend his situation, and for some time after he began to revive he did not seem to recall anything which had transpired. There was some evidence to the effect that he had been drinking liquor during the day, and was somewhat intoxicated during the afternoon.

1. The district court permitted Edith Wright to testify that when she went behind the curtain the defendant told her to sit in a chair, and asked the number of her ticket; that he laid a newspaper on the floor, and told her to lie down on it; and that she then jumped from the platform onto the floor. Grace Cotter was permitted to testify that when she went behind the curtain the defendant told her to sit on his lap, and she did so; that he then unbuttoned her clothes and told her to lie down on the floor, and she did so, and that he then had sexual intercourse with her; that she cried, but did not resist; that after the act was accomplished he told her to sit in his lap, and she did so, and after a time left him and went out of the hall. The defendant complains of the rulings of the court which permitted the introduction of that testimony, on the ground that the offense charged in the indictment could not be proved by showing that the defendant had committed another offense. The case of State v. Walters, 45 Iowa, 389, involved the crime of rape; and this court held that evidence of assaults upon the prosecutrix made before the one for which the defendant was tried was admissible to show intent, but that evidence of assaults made upon another person, having no connection with the offense charged, was not admissible. We said that: “It is a general rule that nothing shall be given in evidence which does not directly tend to the proof or disproof of the matter in issue. Evidence of a distinct substantive offense cannot be admitted in support of another offense. Proof of some other felony, committed at a different time and upon or against another person, and having no connection with the crime charged, is not admissible.” See, also, State v. Saunders, 68 Iowa, 370, 27 N. W. 455. There are exceptions to the rule thus stated, as where knowledge and intent constitute a necessary element of the offense charged. State v. Jamison, 74 Iowa, 613, 38 N. W. 509;State v. Stice, 88 Iowa, 27, 55 N. W. 17, and cases therein cited. We are of the opinion that the testimony in controversy falls within the exception to the general rule, if it may not be regarded as direct evidence of the offense charged. The acts of the defendant towards each girl, although in some respects separate and distinct from his acts towards each of the others, were, in a sense, parts of a single transaction, and proof of the whole was important to show the intent with which he acted towards each girl.

2. Edith Wright testified that she saw Ora just as she came out, and that Ora said that the defendant had “sprinkled some stuff on himself.” The objection of the defendant that it was incompetent was overruled. The state claims that the testimony was admissible, under the authority of State v. Watson, 81 Iowa, 383, 46 N. W. 868, and State v. Mitchell, 68 Iowa, 118, 26 N. W. 44, but nothing decided in either case justifies the admission of the evidence in question. See State v. Richards, 33 Iowa, 420. The argument upon this point is little more than a statement of the claims...