State v. Dudley

• Decision Date: 14 June 1910
• Citation: 147 Iowa 645,126 N.W. 812
• Parties: STATE v. DUDLEY.
• Court: Iowa Supreme Court

147 Iowa 645

126 N.W. 812

STATE

v.DUDLEY.

Supreme Court of Iowa.

June 14, 1910.

Appeal from District Court, Guthrie County; Edmund Nichols, Judge.

The defendant was convicted of having committed rape, and appeals. Reversed and remanded.J. R. Mount and Weeks & Hughes, for appellant.

H. W. Byers, Atty. Gen., Charles W. Lyon, Asst. Atty. Gen., and Sayles & Taylor, for the State.

LADD, J.

An indictment accusing defendant with having had sexual intercourse on May 28, 1909, with prosecutrix, a child under 15 years of age, was returned October 12, 1909. He was arraigned two days later, and given until the 19th to file a motion for a continuance. The grounds of this motion were that neither he nor his attorneys would have time to prepare for the defense so as to go to trial before the next term of court, and that defendant's private affairs required attention. The motion was overruled and the cause assigned for trial October 27, 1909. This allowed only 15 days during a term of court in which to prepare for trial. But defendant was represented by several attorneys of ability and long experience, and the record of the trial indicates that the time was adequate and the defense fully presented, and it cannot be said that substantial justice would have been more nearly obtained had a continuance been granted. The record before us does not indicate an abuse of discretion in overruling the motion.

2. After relating that she was 15 years of age July 28, 1909, that her mother had been dead eight years, that she was living with her father on a farm, that on the 28th of May, 1909, shortly after 9 o'clock a. m., while her father was away, defendant called, and, after ascertaining that her father was not at home, removed his boots and came into the house, that he immediately threw her on the bed, unfastened his and her clothes, and got on top of her, prosecutrix was asked, “What then did he do?” No answer being given, the court remarked that leading questions “in reference to this matter at this time” would be permitted. Thereupon a leading question as to what then occurred was propounded, and, over objection, answered. Reticence in testifying to matters of this kind by witnesses in the situation of prosecutrix furnishes a sufficient ground for an exception to the rule against leading interrogatories. State v. Burns, 119 Iowa, 663, 94 N. W. 238;State v. Peterson, 110 Iowa, 647, 82 N. W. 329;State v. Waters, 132 Iowa, 481, 109 N. W. 1013. There was no error in the ruling. Prosecutrix was asked whether she had told “about this to any one, and, if so, to whom,” and, over objection, answered that she had informed one Bishop, a mail carrier, the next morning and a Mrs. Lilly on July 25th following. It is said the inquiry in form did not limit the answer to a complaint. By “this” manifestly was meant the act of intercourse, and, as none of the details were called for, we think the criticism without foundation. Subsequently it developed that her statement to Bishop had been in response to questions and, as she said, was not voluntary. But this did not obviate the correctness of the ruling when made, and, in the absence of a motion to strike the answer, there was no error. Nor can it be said that the length of time between the alleged offense and the statement to Mrs. Lilly was such as necessarily to require its exclusion. State v. Bebb, 125 Iowa, 494, 101 N. W. 189;State v. Wheeler, 116 Iowa, 212, 89 N. W. 978, 93 Am. St. Rep. 236. The circumstance related by Mrs. Lilly of having met prosecutrix seven or eight times after the transaction in question and her alleged complaint, and that she had already informed the detective, robbed such complaint of any probative value, and warranted the court in excluding Mrs. Lilly's evidence concerning same, but this did not obviate the correctness of the ruling on objection to prosecutrix's testimony, though, had defendant thereafter moved to strike her statement that she told Mrs. Lilly, the motion should have been sustained.

3. Bishop was asked what prosecutrix said had happened, and, over objection as immaterial, incompetent, irrelevant, and hearsay, answered: “I asked her if it was her I heard crying the day before, and she said it was. I asked her what was the matter, and she said, ‘That dirty thing.’ I wanted to know what she meant, and she said, ‘That nasty Frank Dudley.’ I asked her what he had done, and she said he had done all he could. I asked what she meant and she said he did what he wanted to, and she was crying and taking on all the time she was telling me; had her arms on the gate post and her head on her arms, crying.” It will be observed that the question was proper and the objection rightly overruled, even though the answer were otherwise and no exception was taken to it. But the circumstance that her statements were in response to questions did not necessarily rob them of their character as complaints. State v. Peres, 27 Mont. 358, 71 Pac. 162; Rex v. Osborne, 74 L. J. K. B. 311. When an outrage is committed on a female, the instincts of her nature prompt her to make known her wrongs, and to seek sympathy and assistance. It is the natural expression of her feelings, and is received in evidence as tending to corroborate her credibility. State v. Wheeler, 116 Iowa, 212, 89 N. W. 978, 93 Am. St. Rep. 236. Of course, answers to questions involuntary in character are not to be regarded as complaints, but as mere recitals of what is claimed to have happened. State v. Bebb, 125 Iowa, 494, 101 N. W. 189;State v. Pollard, 174 Mo. 607, 74 S. W. 969;Cunningham v. People, 210 Ill. 410, 71 N. E. 389. But the prosecutrix was laboring under no compulsion, and her manner as disclosed by Bishop's testimony was such as to indicate that she was giving free expression to the indignity and wrong which had been done her. The court rightly received the evidence; the circumstances being for the jury's consideration in determining what weight should be given it.

4. A physician testified to having examined prosecutrix 2 1/2 months after the alleged rape, and having found the hymen destroyed. The evidence was admissible. State v. King, 117 Iowa, 484, 91 N. W. 768;State v. Teipner, 36 Minn. 535, 32 N. W. 678;Commonwealth v. Allen, 135 Pa. 483, 19 Atl. 957. The length of time intervening may have impaired somewhat the probative value of the evidence, but did not require its exclusion. In the last-mentioned case evidence of an examination occurring a year and a half after the alleged commission of the offense was held to have been rightly received. Practically the only value of proof of condition so long afterwards is to show that the parts were not such as to disprove the charge.

5. At the conclusion of the state's evidence, defendant moved that the jury be directed to acquit on the ground that there was no corroborating evidence tending to connect him with the commission of the offense. The father of prosecutrix testified that, upon returning between 9 and 10 o'clock of the morning in question, he stepped to the door of his house to tell his daughter to hand him tobacco, when he observed defendant sitting therein looking at a picture and the daughter sitting on the edge of a bed with clothes “ruffled up,” and her hair down over her face and eyes. Surely this evidence, if believed, tended to single defendant out as the perpetrator of the offense and the credibility of the witness, even though convicted of a felony, was for the jury. We are the more inclined to this view because of defendant's admission that he was in the house at the time without his boots, having left them at the door upon entering.

6. Defendant offered to show that prosecutrix had in her possession in the spring of 1908, prior to the alleged rape, a note saying the writer would meet her “to-night” and have intercourse with her. On objection, the evidence was excluded as immaterial and incompetent. That the mere possession of such a paper addressed to no one and unsigned did not tend to show that she had indulged in sexual intercourse is too evident for discussion. Possibly it might tend to prove an unchaste mind, but no inference of the commission of the act could properly have been inferred therefrom. For this reason State v. Bebb, 125 Iowa, 494, 101 N. W. 189, and State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323, are not in point.

7. Complaint is made of the court's refusal of an instruction to the effect that the testimony of prosecutrix's father was the only evidence other than hers tending to connect defendant with the commission of the offense. This was not error. The circumstance that defendant admitted that he was in the house with his boots off might well have been considered in connection with the testimony of her father. This tended to show something more than opportunity. It was indicative of undue familiarity.

8. The court instructed the jury that: “Some evidence has been offered on the trial that subsequent to the day of the alleged rape that the prosecuting witness, Retta Coons, made complaint to one Bishop; and there is also some testimony with reference to the condition of the hymen at an examination made some time after the alleged rape. This testimony is admitted and may be considered by you as corroborative simply of the statements of the prosecuting witness with reference to the crime of rape having been committed upon her. The complaint, if any, and the...