State v. McDonough

• Decision Date: 15 December 1897
• Citation: 73 N.W. 357,104 Iowa 6
• Parties: STATE OF IOWA v. JAMES MCDONOUGH, Appellant
• Court: Iowa Supreme Court

73 N.W. 357

104 Iowa 6

STATE OF IOWA v. JAMES MCDONOUGH, Appellant

Supreme Court of Iowa, Des Moines

December 15, 1897

Appeal from Johnson District Court.--HON. P. B. WOLFE, Judge.

THE defendant, with four other persons, was indicted for the crime of rape. He demanded and was granted a separate trial resulting in a verdict of guilty of an assault with intent to commit rape, and from the sentence imposed appeals.

Affirmed.

Cash & Coldren for appellant.

Milton Remley, attorney general, for the state.

OPINION

DEEMER, J.

In the early evening of August 25, 1896, Emma Gromas, a feeble-minded unmarried woman, was induced by one McGuan to leave a dance hall in Iowa City, and go with him to an old stone quarry, across the Iowa river, and west from Iowa City where they met some men who had been there all the previous night, indulging their thirst for beer, and making night hideous with their ribaldry and song. The woman claims that she was ravished while there by at least four of these men and in this she is corroborated by other witnesses. The state introduced evidence to show that the defendant was one of the men who committed the crime.

When the case came on for trial, the defendant filed a motion for a continuance, based upon the absence of two witnesses, who, it was claimed, would testify to certain acts of unchastity on the part of the prosecutrix prior to the time the offense is said to have been committed. The motion was not filed until the day the case was reached for trial, and it did not state any facts excusing the delay in making the application; nor did it set forth any facts constituting diligence in endeavoring to procure the attendance of these witnesses. Moreover, most of the facts that defendant expected to prove by these witnesses were immaterial and irrelevant. In prosecutions for rape, the character of the prosecutrix must be proven by evidence of general reputation. Particular acts or specific facts are not admissible. See cases cited in 5 Am. & Eng. Enc. Law (2d ed.) p. 878; 1 McClain, Criminal Law, section 460. For these reasons the motion was properly overruled.

II. The men were discovered in their bestiality early in the morning and a posse was organized in Iowa City to accomplish their arrest. This posse went to the scene of the disorder, and, after some difficulty, succeeded in arresting all but two of the crowd. In endeavoring to land them in jail, one of the prisoners was killed by the deputy sheriff. The discovery of the crime and the killing of one of the prisoners necessarily led to considerable newspaper comment and quite a little excitement among the people of Iowa City. When the case was called for trial, the defendant filed a motion for change of place of trial. This motion was supported by affidavits of three disinterested persons, and to it were attached some of the newspaper articles written near the time of the commission of the offense. The state also filed affidavits in resistance. The affiants to the motion were cross-examined upon their affidavits, and, after fully considering the matter, the trial court overruled the motion, remarking at the time: "The order asking for a production of witnesses, and the affidavit filed by the county attorney in resistance to the motion for a change of venue, is by the court refused, for the reason that it is apparent to the court from the trial of same issues in the case tried against one of these defendants, and from the examination made of these defendants, that no such prejudice exists in this county as would justify the court in granting the change of venue, as the court takes notice of the fact of a case involving this same question, in this same indictment, and one of the same parties defendant, was tried in the court, and the jury examined in that case. That coupled with the affidavits filed in resistance to the motion and the affidavit filed for the change of venue, and the examination of these parties who made the affidavit for the change of venue, satisfies the court that there is no ground which would warrant him in granting a change of venue in this case, or wasting time in examining all those who are required on the examination. Therefore the motion for change of venue is refused." Consideration of the cross-examination of the affiants who made oath to the motion for a change of venue convinces us that there was no such prejudice against this defendant in Johnson county as interfered with his having a fair trial. There was some feeling against all the defendants in and around Iowa City, but it did not pervade any other part of the county. Generally speaking the newspaper articles contained nothing more than a somewhat sensational statement of the facts as the reporter gleaned them at the time. In one of the articles it is said that the organization of a vigilance committee is seriously contemplated by the decent element of both town and county, with a view to dissipating a reign of crime, which the writer said prevailed in the county at the time. The article further said that threats were made that, if pettifogging were adopted to prolong the preliminary trial, this committee might take a hand in the proceedings, and make a final disposition of the matter. The showing is not nearly...