State v. Evenson, No. 46826.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: MANTZ
• Citation: 24 N.W.2d 762,237 Iowa 1214
• Parties: STATE v. EVENSON.
• Docket Number: No. 46826.
• Decision Date: 12 November 1946

237 Iowa 1214
24 N.W.2d 762

STATE
v.
EVENSON.

No. 46826.

Supreme Court of Iowa.

Nov. 12, 1946.

Appeal from District Court, Cerro Gordo County; T. A. Beardmore, Judge.

The defendant was charged, tried, and convicted of the crime of rape. He appealed, alleging various errors in the trial.

Affirmed.

[24 N.W.2d 763]

Boomhower & Boomhower, of Mason City, for defendant-appellant.

John M. Rankin, Atty. Gen., and M. L. Mason, Co. Atty., and M. C. Coughlon, Asst. Co. Atty., both of Mason City, for plaintiff-appellee.

MANTZ, Justice.

The defendant, Otto Evenson, was charged by a County Attorney's information with the crime of rape, wherein it was alleged that about May 25, 1945, in Cerro Gordo County, Iowa, he had sexual intercourse with Marjorie Baugh, a girl then 15 years old, contrary to section 12966, Code of Iowa 1939. To this information, defendant entered a plea of not guilty. Upon trial, a jury returned a verdict of guilty of the crime of rape. Defendant has appealed.

I. Appellant has set out and argued five errors upon which he relies for a reversal. In none of these claimed errors does he question the sufficiency of the evidence to sustain the finding of the jury.

Before taking up the claimed errors, we think it will be helpful to briefly set forth portions of the evidence as a sort of background to the claims which appellant makes.

On May 24, 1945, Otto Evenson, aged 47-bachelor-a farmer who owned and operated a farm near Joice, a town some distance from Mason City, Iowa, attended a dance at Manly, Iowa, and later that day came to Mason City. During the evening he drank some beer and wine. That evening at Mason City, he met a neighbor, one Clarence Hoel, who lived on a farm near his. The two were together during the forenoon of May 25th. Both indulged in some beer drinking and about noon walked down along the railway tracks. The evidence shows that while there they met a young lad, Kenneth Gugal, of whom inquiry was made as to some girls. Kenneth testified that appellant gave him some money to get him a girl. When the boy

[24 N.W.2d 764]

went on this mission, appellant and his friend were seen loitering in that vicinity. Kenneth soon returned, bringing with him the prosecuting witness, Marjorie Baugh, a girl then 15 years of age. The evidence shows that the parties met and some money was passed and the two men and the girl went over the railway tracks to a point where there was a depression between the tracks where some grass and bushes obscured the view. As the party proceeded toward the bushes one of the men was seen to have his arms about the prosecuting witness. Both the girl and Kenneth testified that appellant had intercourse with the girl, followed by his friend, and then appellant had such intercourse a second time. Some neighbor woman, after seeing the girl and the two men go over the tracks toward the bushes, phoned the police. In a short time an officer, Charles Van Horn, came; he testified that he went to the place and there saw the boy trying to run away and the appellant in the act of having intercourse with the girl while his companion, Hoel, was on the ground alongside trying to dislodge appellant, and at the same time, kissing the girl. Both men had their parts exposed while the girl was partly disrobed. At the command of the officer, the men arose and went with him, he leading the girl. The appellant seemed much concerned and begged the officer to let him go, saying, ‘I can't go this way, it is awful.’ He wanted to take the girl home and offered the officer $20 if he would let him go. He and his companion were taken to the police station and charges were filed against him. There was evidence that the girl had formerly been in the school for the blind at Vinton, Iowa; had never attended the public schools; and an examination of her, as a witness, revealed that she was under par so far as mentality was concerned. Her vision was such that she could not read or distinguish objects at a distance with any degree of certainty. She also had a smaller sister who had defective vision. The evidence shows that whatever the girl did in the matter was voluntary and without resistance on her part.

II. The first error relied upon was that the court erred in refusing to permit certain witnesses tendered by appellant to testify as to appellant's good character, and in limiting their testimony on general reputation to the peculiar trait involved. Appellant summoned as a witness a Mr. Berry. Two questions were propounded to him by counsel for appellant and objections thereto were made. Appellant complains of the rulings on these two questions. The first question was as follows: ‘Mr. Berry * * *, state whether or not you know his (appellant's) general moral character for honesty, integrity, and good citizenship.’ The state objected to the question as immaterial in form and substance. That objection was sustained and rightly so because the evidence offered did not relate to the trait of character involved in the crime changed. See State v. Ferguson, 222 Iowa 1148, 1161, 270 N.W. 874, 882, wherein we said: ‘It also seems well established that the good character offered by an accused may and must relate particularly to that trait of character which is involved in the crime charged.’

The second question was: ‘Mr. Berry, basing your answer on your knowledge of the defendant's character in the community where he has lived as you have testified to, I will ask you to state whether or not you know his general moral character in the community where he lived prior to May 25, 1945 as to morality.’ A like objection was made to this question with a like ruling. We think that the court should have permitted the witness to have answered the question.

In view of what later followed in the examination of the witness Berry, we think the error insufficient to warrant a reversal. Following the ruling of the court sustaining the objections to the questions above set forth, the witness was asked:

‘Mr. Berry, do you know the general reputation of the defendant, Otto Evenson, in the community where he lived prior to May 25, 1945, as to his general moral character? A. As far as I know, it is good.

‘Q. Answer the question, is it good or bad? A. As far as I know, it is good.’

In view of the examination, questions and answers immediately set forth, we are unable to see where appellant has

[24 N.W.2d 765]

been prejudiced. We call attention to the general rule as stated in 24 C.J.S., Criminal Law, § 1918, pp 1001-1003, which reads as follows: ‘The rejection of evidence is not prejudicial error where the same or substantially the same evidence is admitted. And such rule applies whether such evidence is admitted prior or subsequent to such rejection. This rule finds its most frequent application in cases where the same or substantially the same evidence as that excluded is elicited from the same witness.’ We think the above rule has application here.

Other witnesses were tendered by appellant upon the matter above set forth and the court allowed the witnesses to answer that they knew the general reputation of the appellant.

Further, the record does not disclose what answer the witness would have made had he been permitted to answer the second question.

III. The next error claimed is that the court permitted the state to make inquiry in cross-examination of witness Hoel outside of the testimony given by such witness in direct examination. The specific complaint is that on cross-examination the state asked Hoel whether he had ever before been arrested for intoxication, and further how many times he had been arrested for that offense. The witness had testified that he was a drinking man and that he was intoxicated on May 25th. See State v. Boyd, 196 Iowa 226, 194 N.W. 177. While the trial court should have sustained objection to the questions, yet in view of the statements of witness that he was ‘pretty drunk’ and was a drinking man, we are unable to see wherein appellant suffered prejudice because the witness was allowed to answer as he did.

IV. The next error complained of is that the court should have given requested instructions Nos. I and II, but that the court refused to do so and gave instruction No. VI. Instructions I and II would have told the jury to hold the defendant not guilty if they found he was so intoxicated as to render him incapable of committing the acts charged.

In view of such claim of error which appellant makes concerning the refusal of the court to give requested instructions Nos. I and II and in giving instruction No. VI we will set out the substance of the instruction given.

Therein the court set forth the claim of the defendant growing out of his intoxicated condition. The court...