State v. Hoover

• Decision Date: 03 April 1907
• Parties: THE STATE OF IOWA, Appellee, v. CARL HOOVER, Appellant
• Court: Iowa Supreme Court

111 N.W. 323

134 Iowa 17

THE STATE OF IOWA, Appellee, v. CARL HOOVER, Appellant

Supreme Court of Iowa, Des Moines

April 3, 1907

Appeal from Audubon District Court.-- HON. O. D. WHEELER, Judge.

THE defendant was indicted for assault with intent to commit rape upon one Lena Peterson. There was a verdict of guilty of simple assault, and from the judgment entered upon said finding he appeals.-- Reversed.

Reversed.

W. C Elliott and J. M. Graham, for appellant.

H. W Byers, Attorney-General, and C. W. Lyon, Assistant Attorney-General, for the State.

OPINION

WEAVER, C. J.

I.

It is argued in behalf of the appellant that the evidence on part of the State was insufficient to justify the trial court in submitting a charge of assault with intent to commit rape to the finding of the jury. Without attempting to rehearse the testimony of the witnesses, we have to say that while the case made by the State in this respect does not seem to have been very strong or conclusive, there was not, in our opinion, such an entire absence of evidence in support of the charge as to require the court to withdraw it from the jury, and this assignment of error cannot therefore be sustained.

II. As the appellant was convicted of simple assault, the verdict of the jury operates as an acquittal of the graver charge of assault with intent to commit rape. This result of necessity eliminates all question of any alleged error on part of the trial court in its rulings and instructions concerning the necessity of corroborating the testimony of the prosecuting witness. No corroboration was required in order to uphold conviction of simple assault.

III. According to the story of the prosecuting witness, she was on her way home from school, and while crossing a bridge at a point about a mile from the schoolhouse she was accosted by a young man who proposed sexual intercourse, and took hold of her and attempted to draw her under the bridge, when she broke away and ran to a neighboring house where she complained of the assault. No other person witnessed the transaction. The girl had no acquaintance with the appellant prior to this time, but had seen him on several occasions. She says that she did not at first recognize him as the person who assaulted her, but after she had broken away from him she did recognize him as the appellant, and spoke to him, saying, "If I know you, your name is Carl Hoover," and that the person thus addressed answered saying that it was not his name. It may be further stated that the entire evidence of this witness as well as the statement made by her before the court tend strongly to show that she was quite uncertain as to the identity of her assailant. If to this we add the further fact that the defense was based very largely upon an alleged alibi, the importance of the evidence to which we are about to refer will become very apparent. Soon after the alleged assault the defendant was arrested and taken to the office of the county attorney where he was confronted with the prosecuting witness. On the trial in the court below, the complaining witness being on the stand, her attention was called to her meeting with the appellant to which we have just referred as having taken place in the office of the county attorney, and she was asked to state the conversation which there took place. Much of this matter was admitted in testimony over objection on the part of appellant.

To make clear the point and force of these objections we quote the testimony, questions, and answers, omitting only the specific objections and exceptions which were all properly preserved. Referring to this interview, the county attorney asked the witness: "Q. What did you say to him? A. Why, I didn't say anything to him down in your office. Q. Just think about that, Lena, do you remember whether at that time, whether you told him that he was the one, or not? A. I didn't tell him; but I told you that it was him. Q. Do you know whether you told me that in his presence, or not? A. I told him when he was in there. I told you when he was in there. Q. Do you remember what he said? A. Why, he said to you that he didn't. That all he had to say that he could prove where he had been. Q. Do you know whether or not he said that he was not the one? A. I didn't know whether he said that. I don't think he said that. Q. Did you hear him say it? A. No, sir. Q. When you were in my office there and Carl Hoover was there did you, or did you not, then know whether that he was the person that you saw down at the bridge on Friday night, October 6, 1905, and that you say had hold of you? A. Yes; that was him that was in your office that stopped me down on the bridge."

The effect of these rulings was to enable the State to get before the jury the statements made by the complaining witness to the county attorney charging the appellant with being the person who had assaulted her. Under the rule recognized by this court in the case of State v. Egbert, 125 Iowa 443, 101 N.W. 191, the admission of this testimony was prejudicial error. It would, we think, have been entirely competent to have shown, if such was the fact that when the appellant was confronted by the complaining witness she recognized and identified him as her assailant, or that when accused by her of the alleged assault he admitted his guilt or made statements tending to compromise him in that respect; but, in the absence of words or conduct on his part having a tendency to point him out as the guilty person, the State should not be permitted to prove the unsworn and hearsay statements of the complainant or of any other person. In the Egbert case to which reference is above made the prosecuting witness was permitted to testify that when the sheriff brought the accused into her presence she not only recognized him as the man who assaulted her but that she declared to others that she so recognized him. In holding that the admission of these statements as evidence was unauthorized we said: "We know of no authority for admitting proof of the declaration of the prosecuting witness not constituting part of the res gestoe 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 the defendant by proving declarations of the prosecuting witness with reference to his identify. Of course, the fact of complaint by prosecutrix may be shown, and no doubt as a witness ...