State v. Leuty, 48745
| Decision Date | 15 November 1955 |
| Docket Number | No. 48745,48745 |
| Citation | 73 N.W.2d 64,247 Iowa 251 |
| Parties | STATE of Iowa, Appellee, v. G. J. LEUTY, Appellant. |
| Court | Iowa Supreme Court |
Chas. W. Bowers, Des Moines, and N. D. Shinn, Knoxville, for appellant.
Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Bert A. Bandstra, Marion County Atty. and E. Raymond Mick, Sp. Asst. County Atty., Knoxville, for appellee.
Defendant is charged with the revolting crime of incest alleged to have been committed with his own 12 year old daughter Maxine, on or about August 25, 1954. He is an osteopathic physician, age 34. He and his wife, Martha (30), have four children, the daughter, Maxine, and three boys, aged respectively, 11, 4, and 3. They had been married nearly 14 years.
They live in Knoxville, Marion County, near which county seat the defendant was born and in which he has lived all his life except when away in school or in military training. His business office and laboratory are on the first floor of the building it occupies and his consultation room, medical library, telephone, and insurance records, are downstairs.
It is in this downstair room the daughter claims the crime was committed. She was at the time helping in the office. She testifies her father had committed similar acts at various previous times, the first, when she was in the third grade. She even says he 'molested' her once when she was in the first grade.
It is unnecessary to recite the details as no claim is made on appeal that the evidence was insufficient to generate a jury question. In view of the errors alleged, however, it is proper to point out how fragile was the proof to support conviction. The case was tried in Warren County on change of venue from Marion County.
As is probably true in most cases of this character the testimony of the child was the only real proof that defendant committed the crime, if one was committed. While such corroboration is by statute required in cases involving some sexual crimes there is no such statutory requirement here. As to whether any crime was committed, the state produced two medical witnesses who examined the child shortly after the alleged commission of the crime. The most that was elicited from them was that 'she could have had sexual intercourse.' Both said she was abnormally sensitive to the pelvic examination and they agreed in saying in effect that they found no proof that she had had sexual intercourse. Both said in substance that while the hymen was absent, it occasionally happens that the hymen is missing, is never present, or it may be ruptured in ways other than by sexual intercourse--as the result of some accident or engaging in certain sports 'like riding a bicycle.'
A later examination by two medical witnesses on behalf of defendant went further and expressed the unqualified opinion it would not have been possible 'for a normal male adult to have had sexual intercourse with Maxine Leuty.' One of them had examined defendant and found him normal.
We are not assuming the function of the jury but merely saying it is a case in which the danger of passion and prejudice was more probable than in most.
The appeal is based on claimed errors occurring during the trial. Various errors are assigned. The most serious ones grow out of the state's alleged attempts to get before the jury prejudicial testimony purporting to show acts and conduct of defendant unrelated to the alleged transactions charged here. The trial court sustained objections in most instances but defendant contends the purpose was accomplished and the damage done by persistent suggestion.
A motion to direct verdict for defendant was overruled, the jury returned a verdict of guilty, judgment has been rendered on it, and defendant appeals.
I. The state put on the witness stand a thirteen year old girl who had also worked in defendant's office and after some preliminary questions she was asked: 'On the last day that you worked there did G. J. Leuty do anything?' Over objections the witness was permitted to answer 'Yes'. She was next, over objection, permitted to testify 'he did something to her' that day.
The next question inquired: 'What did G. J. Leuty do to you?' The objection following was substantially the same as had been urged to the preceding questions and overruled: 'That is objected to as incompetent, irrelevant, and immaterial and an attempt to prove transactions with other persons at different times than those alleged in the indictment and highly prejudicial.'
The following proceedings resulted:
At this point the county attorney belatedly suggested taking the matter up in the absence of the jury. The jurors were retired from the courtroom and the county attorney in their absence offered to show by the witness 'that on the said date * * * being the last day on which she worked for G. J. Leuty * * * at his instance and request and for the purpose of undergoing treatment he had her disrobe and lie on the treatment table * * * and over her objection and against her will had sexual intercourse with her.'
The defense renewed objection and urged it was an attempt to show offenses against females other than the prosecutrix and wholly disconnected with the transaction on trial.'
Defendant's attorney offered to submit authorities in support of the objection. The county attorney, however, did not even wish to be heard and the court sustained the objection, saying in part: '* * * while it is proper to show other acts with relation to this particular complaining witness, * * * it is not proper to show acts of separate and distinct crimes with other persons * * *.'
Thereafter the two preceding questions were on motion stricken, the county attorney saying he had no objection. The court however overruled the motion to strike the preliminary testimony of the witness showing her employment by defendant in his office.
When the jury returned to the court room the court instructed it to disregard the questions and answers 'to the effect that Dr. Leuty did something to her' (the witness).
It can hardly be doubted the members of the jury, or at least some of them, understood the purpose of placing this witness on the stand, even though they did not actually hear what transpired in their absence from the court room. The county attorney manifested no great belief in the admissibility of the offered testimony, possibly considering its purpose had been accomplished without the risk of its actual admission. The rule establishing its inadmissibility is almost 'hornbook' law. It is not new. More than fifty years ago this court said it was 'well understood.' State v. Vance, 119 Iowa 685, 94 N.W. 204. It has been reaffirmed consistently since. See State v. Clay, 220 Iowa 1191, 1197, 264 N.W. 77; State v. Crabbe, 200 Iowa 317, 319, 204 N.W. 272; State v. Porter, 229 Iowa 882, 885, 294 N.W. 898. The present case does not come within any of the exceptions to the rule.
We suggest that in such cases the prosecutor should make his entire record in the jury's absence and avoid the danger of reversible error, assuming he has some theory upon which he thinks the testimony proper.
II. The other two assigned errors relate to alleged attempts to get improper matters before the jury by cross-examination of defendant and his wife.
Defendant, in order to show hostility of his daughter toward her father growing out of a separation suit brought by her mother against him which he claimed was fomented or encouraged by relatives, testified: 'and as a result my daughter became definitely hostile towards me.' The basis or cause of the separation suit was not gone into. The sole purpose in referring to it was clearly to show the daughter's hostility. The separate maintenance case had been dismissed and the parties had become 'fully reconciled.'
On cross-examination however defendant was asked: 'The real reason your wife filed the separate maintenance action was because you...
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...faith is not necessary, as a trial can be unfair to the defendant even when the prosecutor has acted in good faith. State v. Leuty, 247 Iowa 251, 258, 73 N.W.2d 64, 69 (1955). The second required element is proof the misconduct resulted in prejudice to such an extent that the defendant was ......
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