State v. McGhuey

• Decision Date: 14 December 1911
• Citation: 153 Iowa 308,133 N.W. 678
• Parties: STATE v. MCGHUEY.
• Court: Iowa Supreme Court

153 Iowa 308

133 N.W. 678

STATE

v.MCGHUEY.

Supreme Court of Iowa.

Dec. 14, 1911.

Appeal from District Court, Ringgold County; H. M. Towner, Judge.

The defendant was convicted of the crime of assault with intent to commit rape, and appeals. Affirmed.Fuller & Fuller and Miles & Steele, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

SHERWIN, C. J.

[1] In the evening of June 12, 1910, Dottie Mickaels, who was then not quite 16 years old and lived with her parents on a farm, took part in public exercises which were held in Salem Church, a rural church situated about half a mile east of her father's home. At the conclusion of the exercises, the defendant asked Dottie Mickaels if he might accompany her to her home, and upon her assent thereto they entered the defendant's buggy, and started from the church in the direction of her father's house. So far there is no dispute in the record. The Mickaels house stood some 10 rods from the main road, and was reached through a lane, and Miss Mickaels testified that the defendant drove past the lane, and stated that he would drive down to the next corner and turn around; that, when they got to the corner indicated, she asked him to turn around and go back, but that he refused to do so; and that he finally took her to a point several miles away from her home, where he had sexual intercourse with her by force and against her will. On the other hand, the defendant testified that he did not drive beyond her home; that, when they reached the lane leading from the road to the house, they stopped and talked a few minutes; and that he then drove on up to the house and left her. Counsel for appellant earnestly contend that the evidence is insufficient to sustain the conviction, and it is perhaps better to consider the matter in this connection. That this young girl was forcibly defiled by some one between the time that she left the church with the defendant and the time that she entered her father's house two or three hours thereafter does not admit of doubt. It was between 10 and 10:30 o'clock when the defendant and Miss Mickaels drove away from the church that night, and, while the record does not disclose the exact time that she reached her home, it may fairly be inferred from the evidence as a whole that it was around mid-night. When she went into the house, her father and mother and the other members of the family had gone to bed, and she at once went to her room, and did not see her mother or father until the next morning. But the next morning, between 5 and 6 o'clock, she saw both of her parents, and soon thereafter, and as soon as her father had left the house, she told her mother what had occurred while she was with the defendant the night before. She then had fresh bruises on one of her arms and on one leg, and her underwear was torn and soiled in such manner as to corroborate her statement that she had been ravished. An examination by competent physicians a few days thereafter also showed that her hymen had been recently ruptured, and that her vaginal organ had been injured so recently that it was still unhealed. One of the physicians testified that the conditions present when he made the examination indicate that the injuries had been received four or five days or a week previous thereto. The appellant urges that there is no evidence, except that of the prosecutrix, tending to show that they drove beyond the Mickaels house that night, or were where the crime is alleged to have been committed. The prosecutrix testified that during the drive before the crime was committed the carriage occupied by them was between two other carriages, and that she recognized the persons in the carriage behind them, by their voices, as the Wilson brothers. She also fixed the place where they left the company of the other carriages and turned north, which was shortly before the assault was made. The prosecutrix did not know who the occupants of the carriage ahead of them were. George Wilson testified that he and his brother were in a buggy driving along the road in question at about the time stated by the prosecutrix, and that two buggies were ahead of them for some distance, that one Ab Stevens and a lady were in the front buggy, but that he did not know who was in the buggy between his own and Stevens'. Stevens testified that he was on the same road that night; that Wilson was also there with his horse and buggy, and was the second one behind him; that the conveyance between him and Wilson was a carriage containing a man and woman; that he could not tell who they were, but that he noticed the team and harness, and a few days after saw the defendant driving the same team. There was also other evidence tending to show that the defendant did not take the prosecutrix directly home, and that he did not reach his own home, a few miles from the home of the prosecutrix, until nearly 2 o'clock in the morning. We are abidingly satisfied that the verdict should not be disturbed on the ground of lack of evidence.

[2] 2. In his opening statement to the jury one of the defendant's counsel said: “It is a very serious crime, gentlemen, one which, if you gentlemen should find him guilty, the court would sentence this defendant to the penitentiary for life.” An objection to such statement was made, whereupon the court said to the jury: “The jury will not consider any such statement regarding the punishment. Under our law, there are so many matters connected with it that it is improper for counsel to discuss those matters to the jury.” There was no error in this direction to the jury. It was the jury's right and duty to pass upon the facts presented for its consideration, and, when that was done, its responsibility ceased. If the facts were such as to demand a conviction under the law and the obligation of the oath taken, the punishment provided by the law could make no difference with the discharge of the duty imposed. Furthermore, while the crime of rape may be punished by life imprisonment, the statute also provides that the punishment may be for any term of years, thus giving the trial court wide discretion in the matter of punishment, and counsel clearly had no right to assert that the court would inflict the greatest penalty possible under the law.

[3] 3. The prosecutrix testified over the defendant's objection that after going to bed the night in question she cried. The competency of the statement is at least questionable, but as no question can fairly arise as to the commission of the crime charged by some person, and as the statement did not tend to connect the defendant with the crime, we cannot see that it was prejudicial to him.

[4] 4. The next morning after the occurrence the prosecutrix told her mother and father that the defendant had raped her, and it is urged that such statement was a mere conclusion, and should not have been received. It was clearly competent to state that intercourse had been had by force, and that was the effect of the statements in question. State v. Barkley, 129 Iowa, 484, 105 N. W. 506;State v. Peterson, 110 Iowa, 647, 82 N. W. 329;State v. Watson, 81 Iowa, 380, 46 N. W. 868;State v. Cook, 92 Iowa, 483, 61 N. W. 185.

[5] 5. When the prosecutrix first told her mother what had occurred the night before, her father had left the house for his work. As soon as the mother was informed of the transaction, however, she went out where her husband was, and told him about it. While the record is not as clear as it might be relative to the matter, it fairly appears that the prosecutrix was present with her father and mother when her mother told her father what had happened the night before, and that she heard the statement made by her mother to her father. As soon as Mrs. Mickaels told her husband what the defendant had done the night before, he asked the prosecutrix whether it was so or not. She said it was so, and that the defendant had raped her. Complaint is made of the admission of the testimony of her father as to the statement made to him at that time by the prosecutrix on the ground that it was not voluntary, and therefore not a complaint within the meaning of the law. It is undoubtedly true that a statement of the kind involved here is not a complaint within the meaning of the law, unless it is the voluntary act of the injured party. It is the voluntary recital of her wrong that is received to strengthen the testimony of a woman who claims that she has been ravished. State v. Bebb, 125 Iowa, 494, 101 N. W. 189.

But the rule is not applicable to this case, because of the facts under which the complaint was made. Complaint had already been made to the mother, and then the mother and daughter sought the husband and father, and the mother, in the presence and hearing of the daughter, told of the wrong, and the prosecutrix, in answer to a question as to the truth of the statement, said that it was true, and then repeated the complaint that she had made to her mother, without further questioning on the part of her father. The appearance of the prosecutrix before her father at that time was entirely voluntary, so far as the record shows, and it may fairly be said that she was there for the purpose of informing him of the wrong that she had suffered; and the fact that her mother first disclosed the horrible condition to her father in no way renders her own statement to him involuntary. Where the circumstances indicate that but for the questioning there would probably have been no voluntary complaint, the answer is inadmissible. But, when the question merely anticipates a statement which the complainant is about to make, it is not...