State v. Ladehoff, 50960

• Decision Date: 16 July 1963
• Docket Number: No. 50960,50960
• Citation: 122 N.W.2d 829,255 Iowa 659
• Parties: STATE of Iowa, Appellee, v. Albert LADEHOFF, Appellant.
• Court: Iowa Supreme Court

Page 829

122 N.W.2d 829

255 Iowa 659

STATE of Iowa, Appellee, v. Albert LADEHOFF, Appellant.

No. 50960.

Supreme Court of Iowa.

July 16, 1963.

Lee J. Farnsworth, Denison, for appellant.

Evan Hultman, Atty. Gen. of Iowa, John H. Allen, Asst. Atty. Gen. of Iowa, and L. V. Gilchrist, Crawford County Atty., for appellee.

THOMPSON, Justice.

The defendant was indicted by the grand jury of Crawford County for the crime of rape, alleged to have been committed on May 7, 1962. Trial to a jury in the Crawford District Court resulted in a verdict of guilty. Judgment was entered on the verdict, sentence imposed, and the defendant appeals.

The rape charged was forcible, alleged to have been committed against a young married woman, the mother of three small children aged three, two and one. Her husband was a truck driver whose work often took him from home overnight. This was the situation on the night of May 7-8, 1962. She was alone in her home except for the three children. The defendant and his family lived next door to the east; she describes it as 'across the yard.' The next nearest neighbor lived some distance to the west; how far away does not appear. The record does indicate, however, that these houses were in the outskirts of the city of Denison, and the neighborhood was sparsely settled.

The prosecutrix testified that on the night in question she had been working in her home, and about 10:30, being tired, she had lain down on her bed. At the time she was wearing her working clothes, consisting of a blouse, a pair of levi shorts and undergarments. She went to sleep, and shortly was awakened by someone who pulled the pillow from under her head and threw it over her face. She said she fought it off, and then described the struggle that took place and its culmination in sexual intercourse, against her will and in spite of her resistance. Her shorts were forcibly removed during the struggle, and her blouse was torn at the neck or shoulder. When the invader finally left, she seized a dress and one of the children and ran to the Ladehoff home next door, where she saw a light. The defendant was not at home. She put on the dress after Mrs. Ladehoff admitted her to the house. Not long after the defendant came home. Relatives and the sheriff and police officers were called, and the prosecutrix was taken to a hospital at Carroll, where she remained for some days.

She had left a night light burning when she lay down, but when she was awakened the house was dark. The officers who investigated found that a fuse, or plug, had been pulled out in the basement so that all lights in the house were disconnected. They also found a window which was not locked and evidence that someone had entered there, as shown by dirt on the sill which resembled a partial footprint.

Other facts will be related as we discuss the errors assigned by the defendant. These are many, and it will not be possible to go into each of them in detail, or to analyze the numerous authorities cited. We shall, however, give attention to those which have any semblance of merit.

I. The fact of the commission of the offense of rape may be established by the testimony of the person attacked. State v. Lahmon, 231 Iowa 448, 451, 1 N.W.2d 629, 631, and citations. In the case before us, the prosecutrix testified that she identified the defendant as her attacker. The defendant thinks her testimony was subject to many contradictions; but these matters were for the jury and we shall not further discuss them. It should be kept in mind, however, that the state was not bound to depend solely upon the testimony of the prosecutrix to establish the fact that a crime had been committed; it might show other evidence, direct or circumstantial, to that effect. This it did. Some of this evidence, as we shall later point out, not only was admissible as tending to prove the commission of the crime, but as connecting the defendant with it. Bruises and other evidences of injury to the person of the one attacked, and a prompt complaint of the attack, are admissible to confirm the commission of the crime, although they are not corroboration of the complainant's identification of the accused. These things appear here, with others which we think have some probative effect as corroboration of the defendant's guilt as the perpetrator of the offense.

Evidence either tending to show the commission of the crime or to connect the accused with it may be circumstantial. State v. Taylor, 196 Iowa 1015, 1020, 192 N.W. 294, 295. Indeed, it is in the nature of things that most of the evidence in these cases, except for that of the prosecutrix herself, will be such. Rape is not often committed in the public gaze, or before eye-witnesses. It is not a spectator crime.

II. The defendant assigns error in the admission of certain testimony of the prosecutrix, and of exhibits offered by the state. The complainant said that immediately after the attacker left her home, she ran to the house of the nearest neighbor--that of the defendant and he was not at home; but she saw a white car driving away down the road. The defendant owned a light green colored car, as to which there was evidence it might look white after dark. Concededly, the defendant was not at home during the time fixed by the prosecutrix when the assault took place, nor when she arrived at his residence. We think this evidence admissible as part of the history of the affair, the res gestae. The rule is thus stated in 22A C.J.S. Criminal Law § 712, page 966: '* * * a weapon or instrument found in the possession of accused or of his criminal associates which, although not identified as the one actually used, is similar in form and character thereto, or which, from the circumstances of the finding justifies an inference of the likelihood of its having been used, is admissible for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred, * * * or for the purpose of showing preparation.'

We quoted this with approval in State v. Bales, 246 Iowa 446, 450, 68 N.W.2d 95, 97, and cited other authorities, including State v. Taylor, 196 Iowa 1015, 1020, 1021, 192 N.W. 294, 296.

The same rule applies to the exhibits admitted, which included a blouse, a glove, a rag and a hooded sweat shirt. The complainant testified she was wearing the blouse at the time of the attack; that it was not torn before, and when she took it off at the hospital it had a tear in the shoulder. There is some confusion in her testimony as to the condition of the blouse before and after the attack, but we think the record sufficiently shows in effect that the tear was not present before and was there after. She could not of course corroborate herself by this testimony within in meaning of the statute, section 782.4, code of 1962, I.C.A.; but she had a right to testify to anything that went to her credibility or was directly connected with the assault.

The same authorities support the admission of the rag, the glove, and the hooded sweat shirt. The prosecutrix testified that at the time of the assault the attacker was wearing a hooded sweat shirt, and had a glove on one hand and a rag wrapped around the other. She told the sheriff of this; and afterward the officer searched the defendant's car and found a rag, a glove and a hooded sweat shirt in it. It is true there are many hooded sweat shirts and many gloves, of the type found; and it would be impossible to identify them as the same ones which she said were worn by the assaulter. But they were admissible in evidence. In State v. Taylor, supra, quoted with the approval in State v. Bales, supra; we said: "It is true, of course, that there are many red bandana handkerchiefs, revolvers, flashlights, and suits of overalls. No one can positively identify a revolver, probably, unless the number is taken. These [articles] were shown to be similar to those used in the home of prosecutrix, as she testifies. The finding of several articles of the same character in the defendant's home very soon after [the crime] is, as said, a combination of circumstances which is significant and quite persuasive. We think the identification of the handkerchiefs and gun, and the other articles, for that matter, was sufficient to permit their admission is evidence." We shall discuss these matters further in connection with the defendant's claim of lack of corroboration, infra.

As to the rag, there is still more support for its admission. It was evidently torn from a piece of goods which had a distinctive design printed upon it. The complainant identified it as a rag which had been lying in her home before the assault. Her testimony on this point is contradicted by the defense; but it was for the jury to decide whom it believed.

The defendant says that the testimony such as that of the prosecutrix that she saw the car leaving the scene was rejected by this court in State v. Brown, 146 Iowa 113, 116, 124 N.W 899, 900. The admissibility of the evidence itself was not in issue there. The sole question was whether it was sufficient corroboration of an accomplice. We are not at this point discussing corroboration. We find no error in the admission of the evidence discussed in this division.

III. Error is predicated upon the admission of a statement from the complainant that she struggled 'to the best of my ability.' She told in considerable detail of the attack and her resistance, both on direct and cross examination. We are unable to agree there was error in permitting the answer above set out. The prosecutrix was competent to testify that the act was done without her consent. 75 C.J.S. Rape § 48, page 521; Epps v. State, 216 Ga. 606, 118 S.E.2d 574, 578, cert. denied 368 U.S. 849, 82 S.Ct. 81, 7 L.Ed.2d 47; Lewis v. State, 154 Tex.Cr.R. 329, 226 S.W.2d 861, 864. We see no distinction between statements by the complainant that she did not give her consent, and that she...