State v. James
| Decision Date | 11 November 1924 |
| Docket Number | No. 35999.,35999. |
| Citation | 198 Iowa 976,200 N.W. 577 |
| Parties | STATE v. JAMES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; D. W. Hamilton, Judge.
The defendant was indicted for the crime of rape, and was convicted of assault with intent to commit rape, and appeals. Reversed.Devitt & Eichhorn, of Oskaloosa, and L. D. Teter, of Knoxville, for appellant.
Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Roscoe J. Woodard, Co. Atty., of Oskaloosa, for the State.
The prosecuting witness is a girl fourteen years of age, by the name of Martin. The evidence in behalf of the state shows that appellant and a man named Voss were in the city of Oskaloosa on June 29, 1922. It appears that in the evening they took two girls riding for a time in the city of Oskaloosa. In the course of time, the prosecuting witness was in the car in the front seat with Voss and they drove to the home of a girl by the name of Werner and she was asked by the prosecuting witness to go with the party for a ride. It appears that neither appellant nor Voss were previously acquainted with either of the girls. When they left the Werner place, Voss and the prosecuting witness were in the front seat and appellant and the Werner girl in the back seat. They drove out of town some distance and stopped the car. The evidence shows that Voss tried to get the prosecuting witness out of the car and finally picked her up and used force in removing her from the car. The claim of the Martin girl is that Voss took her to a place by the side of the road in the rear of the car and forcibly had sexual intercourse with her. During all of this time appellant was in the back seat of the car with the Werner girl, and the evidence tends to show that while Voss and the prosecuting witness were away from the car some little distance the prosecuting witness screamed to the Werner girl and called to her to come and help her. The Werner girl testified that after she heard the call from the Martin girl she tried to get out of the car and said that at that time appellant “was trying to have intercourse with me and said for me to stay still.” The evidence also shows that the prosecuting witness got back in the car with Voss and the parties returned to town and the prosecuting witness remained that night at the home of the Werner girl.
The foregoing is the substance of the testimony offered by the state, and upon which the verdict of assault with intent to commit rape upon the Martin girl was returned. The theory of the state is that appellant is guilty as an aider and abettor of Voss in an assault with intent to commit rape upon the prosecuting witness.
[1] I. Appellant sought a new trial on the ground of misconduct of the jury. In support of a claim of misconduct, appellant offered the affidavits of three of the jurors who averred to the effect that during the deliberations of the jury the foreman of the jury stated that he personally knew that appellant had been in trouble of a similar nature before, with another girl. The evidence of said jurors also tends to show that they would not have voted for a verdict of guilty had it not been for the statement made by the foreman of the jury, that appellant had been in similar trouble before. Eight jurors gave affidavits that they did not hear the foreman make the statement that he personally knew that appellant had been in trouble of a similar nature before with another girl. The foreman made no affidavit and was not examined as a witness in regard to said matter.
The question of misconduct of a juror in making statements of the kind alleged to have been made in this case has been before this court many times. Some significance is to be attached to the fact that the foreman of the jury, whom it is alleged made the improper statement, did not deny the same either by an affidavit or by evidence in resistance to the motion for a new trial. The jurors whose affidavits were filed in resistance to the motion for new trial stated that they did not hear the statement claimed to have been made by the foreman in the jury room, while the three affiants, whose affidavits were furnished in support of the motion for a new trial, state positively that such a statement was made to said jurors.
The matter of the granting of a new trial, on the ground of the alleged misconduct of the jury rested largely within the discretion of the trial court. The evidence as shown by the affidavits in regard to what took place was in conflict, and we are constrained to hold that there was no such abuse of the discretion vested in the trial court in matters of this kind, to justify interference on our part. The rule is thoroughly well established that in a criminal case the party should only be tried upon the evidence that is received in open court, and not upon statements made by a juror as of his own knowledge, to his fellow jurors, in respect to matters not testified to upon the trial, but we think there is a failure here to show abuse of the discretion as would justify us in interfering.
[2] II. The court instructed the jury that before appellant could be convicted of rape the testimony of the injured party must be corroborated by other evidence than her own testimony. The court correctly and fully instructed the jury as to what would constitute corroboration.
The court also submitted to the jury the included offenses of assault with intent to commit rape, and assault and battery. But the court at no place gave the jury any instruction whatever that corroboration is necessary before there can be a conviction of assault with intent to commit rape. This is required under our statute. Code, § 5488. Where the court submitted to the jury the included offense of assault with intent to commit rape, it was incumbent upon the court to instruct the jury that, before there could be a conviction of such offense, there must be corroboration of the prosecuting witness. It was error to fail to so instruct, and for this reason alone a reversal must be had. State v. Carnagy, 106 Iowa, 483, 76 N. W. 805;State v. Hetland, 141...
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