State v. Hutchison

Citation95 Iowa 566,64 N.W. 610
PartiesSTATE v. HUTCHISON.
Decision Date10 October 1895
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from district court, Tama county; John R. Caldwell, Judge.

The defendant was indicted for the crime of carnally knowing and abusing a female child under the age of 13 years. He was convicted of an assault with attempt to commit rape, and sentenced to the penitentiary for the term of five years. He appeals. Affirmed.Struble & Stiger, for appellant.

Milton Remley, Atty. Gen., E. C. Ebersole, Co. Atty., and C. B. Bradshaw, for the State.

DEEMER, J.

The indictment charges that defendant, on the 26th day of July, 1893, in and upon the person of one Edna Means, a female child then and there under the age of 13 years, to wit, 6 years, did make an assault, with intent her, the said Means, to carnally know and abuse, and her, the said Edna Means, then and there feloniously and carnally did know and abuse.

1. The prosecuting witness was asked by the state how her mother knew that defendant put his hands upon her person, at a certain time after the offense is said to have been committed. The witness answered: “Because I told her.” The question was asked upon re-examination of the witness, and was competent for two reasons: First, because the matter was brought out by defendant on the cross-examination; and, second, because it was claimed by the defense that the witness, who is a little girl about 7 years old, was rehearsing upon the stand a story which her mother had told her to repeat.

2. The mother of the prosecuting witness was asked about complaints made to her by the child of the defendant's conduct, and, in answer to interrogatories which were objected to, stated that she complained of that nasty bad man [[[speaking of defendant], and that she complained of this man putting his bean up against hers.” Complaint is now made of the rulings, because it is insisted that statements made by the child as to who her assailant was are incompetent. The question presented has recently undergone investigation in the case of State v. Cook (Iowa) 61 N. W. 185, and it was there held, following State v. Watson, 81 Iowa, 380, 46 N. W. 868, and State v. Mitchell, 68 Iowa, 116, 26 N. W. 44, that questions and answers similar to those appearing in this case were proper.

It is also insisted that the court was in error in allowing testimony to be given of expressions of suffering and complaints of pain made by the prosecutrix shortly after the crime is said to have been committed. The theory of the state was that, while the hymen of the child had not been ruptured, yet that defendant, by his treatment of her, had caused her private parts to be badly inflamed and irritated, to such an extent as to cause considerable pain and obstruct the flow of urine. Surely, the natural expressions and complaints made by the child within a few hours after the time the offense is said to have been committed were proper testimony. The witness also located the part of the person which the child indicated was painful. It occurs to us that, if it be admissible to show complaints and exclamations of pain, it is competent to locate the seat of pain in the same manner.

A witness was permitted to testify as to what the mother of the prosecutrix told her she had said to one Stiger, an attorney for the defendant, about allowing him (Stiger) to send a physician down to examine the little girl. This was done upon re-examination of the witness, and related to a conversation called out on cross-examination. There was no error in this.

A witness was asked about the prosecuting witness having romped and frolicked with other children in the evening after the crime is said to have been committed. The court erroneously sustained an objection to the question, but the witness afterwards fully stated the facts. No prejudice resulted from this ruling.

Other errors are complained of in the admission and rejection of testimony. We have considered them all, and discovered no prejudicial error.

3. The court instructed that defendant might be convicted of an assault and battery, or a simple assault. It is urged that this was an error, because these crimes were neither charged nor included in the one charged in the indictment. State v. McAvoy, 73 Iowa, 557, 35 N. W. 630, is relied upon. In that case defendant was accused of the crime of an assault with intent to commit rape. No actual violence was charged. It is said in the opinion that the crime of assault and battery is not necessarily included in an indictment charging an assault with intent to commit rape, and that, as no actual violence was charged, it was error for the court to direct that defendant might be found guilty of an assault and battery. In this case the indictment not only charged an assault with intent to ravish, but also actual carnal knowledge and abuse. Such a charge includes both assault and battery, and simple assault. State v. Kyne, 53 N. W. 420, 86 Iowa, 616.

It is further contended that, as the assault is not charged to have been made feloniously, defendant could not be convicted of a lesser degree of crime than rape. The use of the word “felonious” is not essential. State v. Casford, 76 Iowa, 330, 41 N. W. 32;State v. Griffin, 79 Iowa, 568, 44 N. W. 813; Code, §§ 4305, 4306. It may be said that these cases are not exactly in point. It is conceded that they do not decide the exact question here presented, but in principle they are so nearly allied as to be decisive of the case upon this proposition.

4. Complaint is made of the language used by the county attorney in his address to the jury. The remarks to which exceptions are taken were as follows: “Nothing has so stirred this community for a long time as this outrage upon this little girl.” “No; the defendant no longer resides in Tama City, for this outrage which he has perpetrated upon this little girl has made it...

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