State v. Egbert
| Decision Date | 27 October 1904 |
| Citation | 101 N.W. 191,125 Iowa 443 |
| Parties | STATE v. EGBERT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Monroe County; C. W. Vermillion, Judge.
Defendant was found guilty under an indictment charging him with assault with intent to commit rape, and sentenced to imprisonment in the penitentiary for six years, from which sentence he appeals. Reversed.N. E. Kendall, for appellant.
Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.
The evidence tended to show that on Saturday, the 11th day of October, 1902, at about half past 10 o'clock in the forenoon, the prosecuting witness, 13 years of age, started from the town of Melrose for her home, which was about 2 1/2 miles from town south and east. She proceeded south along a highway about 110 rods, and then turned east along another highway, and had gone about 35 rods, when she was assaulted by a man who, when she first saw him, was sitting under a tree. There is no question as to the brutal nature of the assault, the sole controversy before the jury being as to the identity of the defendant with the person who committed the crime.
1. Immediately after prosecutrix escaped from her assailant she went to the nearest house, and made complaint, and gave a description of the man who had assaulted her. The next day (Sunday) prosecuting witness was at the house of one Robinson in the town of Melrose, in the afternoon, when the sheriff, who, as she knew, had, with others, been engaged in the search for the person who had committed the assault, came to Robinson's with the defendant, and she was allowed to testify that she then recognized the defendant as the man who committed the assault, and declared to others that she so recognized him. Counsel for defendant complain of the action of the court in overruling defendant's objection to the testimony of the witnesses who were present as to what the prosecuting witness said on that occasion. In this ruling we think there was manifest error. The words or conduct of the defendant when confronted by the prosecutrix and accused by her might be shown by the state for the purpose of establishing an admission by him of his guilt. State v. Dennis, 119 Iowa, 688, 692, 94 N. W. 235. But we know of no authority for admitting proof of the declaration of the prosecuting witness not constituting a part of the res gestæ with reference to the identity of the defendant with the person committing the crime. Certainly it is not competent to thus build up a case against defendant by proving declarations of the prosecuting witness with reference to his identity. Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262;Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274, 60 Am. St. Rep. 56. Of course, the fact of complaint by prosecutrix may be shown, and no doubt as a witness she may testify that she recognized the defendant as the person who committed the crime, but what she said is not in itself competent evidence on the question of identity.
2. At the close of the evidence for the state defendant demurred to the evidence offered on the ground that there was a total absence of testimony, other than that of the prosecutrix, tending to connect the defendant with the commission of the offense, and this demurrer was overruled. In this, we think, there was error. It is provided in Code, § 5488, that: “The defendant in a prosecution for * * * assault with intent to commit rape * * * cannot be convicted upon the testimony of the person injured unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.” It is well settled that the corroborating evidence must be other than the evidence of the prosecutrix, and must tend to single out the defendant, and indentify him as the person who committed the crime. State v. Carnagy, 106 Iowa, 483, 76 N. W. 805;State v. McGinn, 109 Iowa, 641, 80 N. W. 1068;State v. Fountain, 110 Iowa, 15, 81 N. W. 162. Aside from the testimony and declarations of the prosecuting witness, the only evidence relied upon by the state to connect the defendant with the commission of the crime was the testimony of witnesses who said that at the time the prosecutrix passed south along the highway, just prior to the assault, they saw the defendant passing along the highway right ahead of her; and other testimony to the effect that about half past 11 o'clock on the forenoon of the day on which the assault was committed defendant was seen in the town of Melrose, coming from the south. No witness save the prosecutrix testifies to having seen defendant in the immediate neighborhood where the assault was committed, nor, indeed, to have seen anything of him between the time he was going south and the time about an hour later, when he was in Melrose, coming from the south. It is proper to say, also, that the prosecuting witness testified that she did not see the defendant or any other person going south along the highway in front of her before the assault, and that the witnesses who testified that they saw defendant on the highway, either going south or returning north,...
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...56 N.E. 752; Mills v. Commonwealth, 22 S.E. 863; State v. Stowell (Iowa), 15 N.W. 418; State v. Wheller (Iowa), 89 N.W. 978; State v. Egbert, 101 N.W. 191; v. State, 216 N.W. 664; Ferguson v. State, 71 Miss. 805; Hollins v. State, 128 Miss. 119; Grogan v. State, 118 So. 627; Williams v. Sta......
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...weight than the testimony of the prosecutrix under oath to the same effect. It is not corroboration, and we so held in State v. Egbert, 125 Iowa, 443, 101 N. W. 191. Nor does the fact that the defendant was present at the very time and place corroboratethe prosecutrix in any sense. This cou......
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State v. Gibson
... ... that the statutory provision was enacted, and it is our duty ... to apply the statute without hesitation, and give to it its ... reasonable interpretation, regardless of the effect which may ... result from its application in any particular case.' ... State v. Egbert, 125 Iowa, 443, 447, 101 N.W. 191, ... 192 ... So long ... as we have a statute requiring corroboration or other ... evidence to support the testimony of the female in such cases ... we are compelled to observe its requirements. The evidence ... offered ... ...