State v. McKinnon

• Decision Date: 20 November 1912
• Parties: STATE v. MCKINNON.
• Court: Iowa Supreme Court

158 Iowa 619

138 N.W. 523

STATE

v.MCKINNON.

Supreme Court of Iowa.

Nov. 20, 1912.

Appeal from District Court, Hancock County; J. F. Clyde, Judge.

Indictment for rape under the provisions of section 4758 of the Code. There was a verdict of guilty and judgment entered thereon. Defendant appeals. Affirmed.John Hammill and Senneff, Bliss & Witwer, all of Britt, for appellant.

C. R. Wood, of Corwith, and J. E. Wichman, of Garner, for the State.

EVANS, J.

The charging part of the indictment is as follows: “The said William McKinnon on or about the 10th day of September, in the year of our Lord one thousand nine hundred and eleven, in the county aforesaid, did willfully, unlawfully, and feloniously ravish and carnally know one Jessie Glanville, then and there being, the said Jessie Glanville being then and there a girl of the age of twenty years, and naturally imbecile and weak in mind, and deficit in understanding, to such an extent that she did not know or comprehend the nature of the act, and naturally of such imbecility of mind and weakness of body as to prevent her making effectual resistance to said defendant and his unlawful act, contrary to and in violation of law and against the peace and dignity of the state of Iowa.” In support of the indictment the state offered evidence tending to show that the prosecuting witness was naturally of such imbecility of mind as to come within the classification of the statute. The defendant was not a witness in his own behalf.

On behalf of the state, the illicit intercourse was proved by the testimony of the prosecuting witness and by corroborative evidence which was all but conclusive. On the question of the mental condition of the prosecuting witness, many witnesses, both expert and nonexpert, testified. All such testimony tended to show that the prosecuting witness was not normal in her mental development. She had considerable intelligence and ability to learn in school, but in all her association with others she was backward and nonresisting. She lacked initiative both in conversation and conduct. She seldom spoke except to answer questions, such answers being usually “Yes” or “No.” She was industrious and obedient to any request for assistance, but her conduct was usually set in motion by some one else. She was 20 years of age at the time of the alleged offense. Her bodily condition also was abnormal. Her eyes “rolled.” She had a defective spine, and walked with a “shuffling gait.” All the testimony tended to show that she lacked materially in mental capacity and in resisting power. The defendant called as witnesses three medical experts, all of whom had previously made an examination of the prosecutrix. We quote from their testimony as follows:

Dr. Cole testified: “I would class her on the dividing line between a low mentality and an imbecile. She had the will power to make the ordinary resistance in proportion to her intellectual power. I think she is somewhat below the average girl of her age in intelligence. She has the will power between the highest class of imbecile and the low average person. I don't think she would have the same power to distinguish between right and wrong that a girl of average mentality would have. I think her mental defects would lead her to yield to the desires and the importunities of man asking her for sexual intercourse easier than a girl of higher mentality. Imbeciles can't resist temptations with the same degree that a person of average mentality can. The ability to converse is not always a true test of imbecility. Her physical defects are more abnormal than her mental defects. The symptoms point very strongly to a degeneration in one of the cords of the spinal column. She has enlarged tonsils and adenoids which makes it difficult for her to breathe, and causes mouth breathing.”

Dr. Burke testified: “She is below the average in intelligence and brightness for a girl of her age. You would probably have to class her as an imbecile. She'd be a person with a weakened intellect, but she'd be above the average of intellect of an imbecile. She'd be a high-standard imbecile. Her ability to choose her desires would be limited according to the amount of her intellect. The fact that she stated when asked to have sexual intercourse that she was afraid she would get in a family way would indicate reasoning power and intelligence, and the fact that she refused to tell her parents would indicate the same thing. She has many physical defects.” Cross-examination: “My entire testimony is based on the examination of last night. An imbecile is a person with an impaired mentality and intellect by various degrees. Most of her answers that she made us were in monosyllables. Jessie Glanville didn't have the resisting power of the average girl of her age.”

Dr. Irish testified in accord with the two preceding witnesses, and also: “I think her physical defects exaggerate her mental defects.”

The evidence as a whole leaves no room for reasonable doubt of the imbecility of mind of the prosecuting witness to a noticeable degree. The defendant worked at the home of the prosecutrix for about three months prior to the illicit relation charged. He had also boarded there a short time in the previous fall. He appears to have recentlycome into the neighborhood. His previous history is not disclosed in the record.

[1] Many points relating to the admission of testimony are relied upon for reversal. The testimony of the witnesses is interspersed with many statements of conclusion or opinion as to the mental condition of the prosecutrix, and the claims of error in the admission of testimony are directed largely to these points. One witness testified that she was “odd acting”; another that she cried much without apparent reason; others that she appeared to lack will power. We cannot undertake to pass now in detail upon these specific objections. The state of the evidence on both sides as to the imbecility of the prosecuting witness was such as we have sufficiently indicated above that no possible prejudice could result from the expressions of opinion complained of, even if they were technically improper. We are of the opinion, also, that as to many of such opinions at least there was sufficient basis for their admission under the rules heretofore announced by us. Reininghaus v. Association, 116 Iowa, 364, 89 N. W. 1113;State v. McKnight, 119 Iowa, 79, 93 N. W. 63. On the question of opinion as to will power, the medical evidence introduced by the defendant shows that imbecility of mind reduces the will power. There is nothing in the opinions of the medical witnesses of the state inconsistent with this view, and we see no ground of prejudice at this point.

[2] 2. Frank Glanville was a witness for the state. He was an uncle of the prosecutrix. She was at his house the Sunday afternoon of September 10th, when the defendant called for her. He testified briefly to the circumstances of such call, and that the prosecutrix went away with the defendant in his buggy. On cross-examination, defendant's counsel put to him the following question: “You knew from what you had heard and was conscious of the fact that Sunday when he came there that he had gone with her some?” The trial court sustained an objection to this question on the ground that it was not cross-examination and hearsay. Complaint is made of this ruling. It is contended that an answer to this question would have tended to show conduct on the part of this witness inconsistent with his present testimony as to the mental weakness of the prosecutrix. It is argued that, if he had believed that she was mentally weak, he would not have permitted her to go with the defendant, and the fact that he did permit her to go with him indicated his belief in her normal mental condition. The argument assumes too much. The question was not a very important one, and was well within the discretion of the trial court to permit or refuse. The witness had no control over the prosecutrix. Even if he had been her father, he had a right to assume that the intentions of the defendant in calling for her were honorable. If they had been honorable, they might have been an aid to her recovery of normal mental condition. What is here said will apply also to appellant's similar complaint as to the testimony of the wife of this witness.

[3] The defendant complains, also, of the refusal of the court to permit him to cross-examine this witness as to the comparative condition of her brothers and sisters. The witness testified on direct examination that the prosecutrix had not learned to walk at 18 months, and that she had never learned to talk plainly. He was asked on cross-examination how old the brother Vergil was when he learned to talk and walk; also how old the brother Howard was when he learned to talk and walk; and how old the other sister was when she learned to talk and walk. The trial court sustained objections to all these questions. Clearly, they were not cross-examination. The trial court held them to be immaterial.

[4] We think in the state of the record the ruling was proper. We can see no aid to the defendant in the inquiry in this case to be had by any answer that might be given to the questions propounded. If it should appear that the other children were defective also, it could not aid the defendant. Neither would it aid him to show that they were not defective. If it were shown that they were as old as the prosecutrix when they learned to walk and talk, and were now mentally normal, it would not contradict or explain away the present condition of the prosecutrix. Even if the evidence were material for the defendant, its exclusion on the cross-examination was clearly within the discretion of the court.

[5][6] 3. Perhaps the most strenuous complaint of the defendant is that the trial court failed to define to the jury the statute under which he was indicted. Section 4758 of the Code is as follows: “Carnal knowledge of...