State v. John, 33240.

• Citation: 176 N.W. 280,188 Iowa 494
• Decision Date: 17 February 1920
• Docket Number: No. 33240.,33240.
• Parties: STATE v. JOHN.
• Court: United States State Supreme Court of Iowa

188 Iowa 494

176 N.W. 280

STATE

v.JOHN.

No. 33240.

Supreme Court of Iowa.

Feb. 17, 1920.

Appeal from District Court, Mahaska County; D. W. Hamilton, Judge.

Defendant was indicted on the charge of assault with intent to commit rape. Tried and convicted of simple assault. He appeals. Opinion states the facts. Reversed.L. T. Shangle, of Oskaloosa, and J. H. Whitecotton, of Moberly, Mo., for appellant.

Maxwell A. O'Brien, Co. Atty., of Oskaloosa, and H. M. Havner, of Marengo, for the State.

GAYNOR, J.

The defendant is charged with assault with intent to commit rape. The crime is alleged to have been committed on or about the 14th day of March, 1918, in Mahaska county, Iowa. It is charged that the defendant unlawfully, willfully, and with force and violence made an assault on one Mary Hattery, with intent, then and there, to have carnal knowledge of and sexual intercourse with her against her will. The indictment was returned on the 21st day of May, 1918.

Defendant entered a plea of not guilty. The cause was tried to a jury. At the February, 1919, term of said court, a verdict was returned finding the defendant guilty of simple assault. Judgment was entered upon the verdict. From this defendant appeals and assigns many errors for reversal:

(1) That there was no corroborating evidence. In this he relies on section 5488 of the Code of 1897, which provides that, in a prosecution for assault with intent to commit rape, the defendant cannot be convicted on the testimony of the injured party, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.

It is the contention of the defendant that the charge made was permitted to go to the jury upon uncorroborated testimony of the prosecuting witness, without other evidence tending to connect the defendant with the commission of the offense. At the conclusion of the evidence for the state, the defendant moved that the charge of assault with intent to commit rape be withdrawn from the consideration of the jury for the want of evidence to support it, and in that there was no evidence in the record, outside of the evidence of the prosecuting witness, Mary Hattery, the injured party, tending to single out or point to the defendant as the one guilty of the crime. This being overruled, the defendant then moved that the court strike from the record all evidence as to what was said by the prosecuting witness, Mary Hattery, to her daughter and others long after the time when it is claimed the assault was committed, as incompetent, immaterial, and self-serving. These motions were also overruled. This is the first complaint made.

The court in its instructions to the jury told them that a conviction cannot be had upon the testimony of the person assaulted unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense, and that the corroboration must be found in other testimony than that given by the prosecuting witness; that there must be a showing of facts and circumstances, other than shown by her testimony, which tended to connect the defendant with the assault charged against him; and then said that the complaints of the prosecutrix to others are not alone sufficient to constitute the corroboration required by law; that evidence of bruises on her body and evidence of torn clothing are not alone corroboration, for none of them may tend to connect the defendant with the commission of the offense charged; that opportunity is not enough in itself to constitute the corroboration required by law; and finally said there must be independent testimony in the case, outside of the evidence of the prosecutrix, which tends to identify and single out the defendant as the perpetrator of the crime charged, and which, considered in connection with the testimony of the prosecutrix, connects the defendant with the commission of the crime.

The record discloses that the defendant was a farmer and an unmarried man, and lived alone in a home upon his farm; that he engaged the prosecutrix to keep house for him; that he was to furnish a home for her and her daughter and buy the girl what clothes she needed to go to school, but was not to pay wages; that she was to have the privilege of living in his home and storing whatever goods she had there; that she came to defendant's home about the first of March, and brought considerable personal property with her; that she stayed there about 13 days; that after her coming she did the housework, prepared the meals, etc. The prosecuting witness is about 52 years of age, and the defendant about 47.

The state's testimony as set out in the abstract is substantially as follows:

The prosecuting witness testified:

“Beulah, my daughter, is 14 years of age. We went to defendant's about the first of March. No one lived there but the defendant. After we had been there a week or so, defendant showed us some pictures of former housekeepers, and said: ‘One of them used to take me down and sit on me. Another one sat on my lap. Another took a bath by the stove while I sat by the stove reading a paper.’ I was shocked, and said, ‘I believe you had only chippy women here.’ About a week after this, he came home in the afternoon from helping the neighbors take hogs to Lacey. My daughter was at school. When he came home he said something and grabbed me. Later in the afternoon I asked him whether he had his dinner. I was getting a meal for him. He came home in the middle of the afternoon. He took me down on the floor; grabbed my wrapper off. I tried to get away. He tore my wrapper all off; tore the buttonholes off. I tried to get away. He tore my shirt off. I tried to keep my clothes down. I had on an underskirt that was fastened in the back. My wrapper was buttoned down the front. He tore my shirt down the back and tore it clear off of me. He could not get my other clothes off. The upper part of my body was naked. I told him my girl would come home pretty soon. He let me go and said something; said that, if I didn't give in, my daughter would. He said he would get it some way. He said that when he took me down. He didn't keep me down long. After he let me go, I ran upstairs and went to my room; put a chair against the door. When he went out I went downstairs. I found my shirt on the stove, put on my clothes, and then the girl came home.”

She was then asked this question:

“Did you tell the girl anything about what had happened? A. No, not until she wanted to know what was the matter. Q. At the time she came home from school, did you tell her what had happened? A. After she asked me. Defendant came while I was getting supper. He came in for supper. Q. At the time when the girl first came, did you explain to her what happened? A. I did not. Q. Did you get supper that night? A. Yes, sir. Later I was going to take a bath. Had a tub and two chairs ready. Was heating water on the stove. He was reading. He was in the dining room, I in the kitchen. He grabbed the water and threw it out. Said I had to obey orders. The girl was there with me. He nearly knocked me down when he threw the tub of water out. Said I must obey orders. We went upstairs and got ready to go to town. I started to take my wrapper off. My girl noticed my shirt and wanted to know what was the matter with my shirt. I told her I had burned it. She wanted me to tell her more, but I didn't. Told her no more until we got to Lacey. Before we started for Lacey, he was in bed downstairs. We went to one Martin's. Mr. Hull came over there, and I told them what had taken place. They took us to Lacey. They took us to Moffit's at Lacey. We stayed there all night. I had a blue mark on my arm. I went back to the defendant's afterwards and got my things. I saw him then and he swore at me. Said I was a darn liar and a thief. I think Lacey is about a mile from the defendant's place.”

On cross-examination she testified:

“When he let me up, I went upstairs, and he went outdoors and went to sawing wood. When I got dressed my daughter came. I got supper and set the table. I cooked the supper. I sat down to the supper. Defendant sat down and ate supper. I don't remember whether I ate or not. We had supper about 6 o'clock. Defendant sawed wood until supper time. I don't know whether he did his chores after supper or not. After supper I changed my dress to go away. When defendant had me down, I did not scream. I was so weak and nobody there. I didn't show anybody my bruises down at Martin's. Didn't show my daughter the bruises on my arm until we got to Moffit's.”

Charles Martin, to whose house the prosecuting witness first went on the evening of the day when it is claimed the assault was committed, testified:

“She came to my house about the 14th of March. After she had been there a time, she told me to some extent what had happened. She didn't tell me at first. I don't remember what she said. She said something about ‘this tear-up.’ I don't remember what she said. Something about having had a tear-up.”

On cross-examination he said:

“I don't remember what she said. She said something about having had a tear-up. That is as near as I can remember.”

The daughter when on the stand testified substantially the same as the mother as to the showing of the pictures and touching the servant girls he had before and their conduct, and further said that when she came home from school her mother acted scared; that when she asked her what was the matter she did not say anything. She further testified:

“I was by mother at the time he pushed her over (referring to the time when water was being prepared for a bath) and we went upstairs and changed our clothes. We were going to go. She had on a wrapper. It was torn. The buttonholes were torn. She took it off. Her shirt was torn and burned across the back. We were getting ready to leave. We went to a neighbor's. They didn't want to keep us and took us to Lacey, and we stayed at Moffit's. I noticed...