State v. O'Meara

• Decision Date: 11 May 1920
• Docket Number: Nos. 33079,33504.,s. 33079
• Citation: 190 Iowa 613,177 N.W. 563
• Parties: STATE v. O'MEARA.
• Court: Iowa Supreme Court

190 Iowa 613

177 N.W. 563

STATE

v.O'MEARA.

Nos. 33079, 33504.

Supreme Court of Iowa.

May 11, 1920.

Appeal from District Court, Ida County; E. G. Albert, Judge.

The defendant appeals from conviction of the crime of rape. Affirmed.M. M. White, of Ida Grove, Wm. Mulvaney, of Cherokee, and Campbell & Campbell, of Battle Creek, for appellant.

Horace M. Havner, of Des Moines, for the State.

LADD, J.

[1] The defendant, Ray O'Meara, is accused in the indictment of having committed the crime of rape on Elsie Hargens, November 4, 1917. He was then 17 years of age, as was prosecutrix. The accused contends there was not sufficient evidence to carry the issues as to his guilt to the jury. It appears that prosecutrix went to the home of Ida Knudsen, who was about a year younger, at about 7:30 o'clock p. m. and remained there until about 15 minutes before 9, when they went to the post office in Ida Grove and obtained the Chicago and Sioux City newspapers, read them awhile, and a few minutes after 9 o'clock started along the street towards the corner. As they did so a Ford automobile, inclosed, stopped near them and O'Meara, who was in the car with Ernest Rathburn, invited them to take a ride. The girls accepted, though, as they say, on condition that the car was not to leave the pavement and that they were to get back within a half hour. Prosecutrix sat with defendant in the front seat and her companion with Rathburn behind. The automobile was driven about town and stopped near the cemetery. After talking a while the girls insisted on going along, and as the boys paid no attention to this they undertook to crank the car, and as they failed to do so started on foot towards town. After they had gone a short distance the boys overtook them, and on invitation the girls entered the car as before and were driven out of town over the Maple River bridge, where defendant turned the automobile into a lane toward the rendering works, where it was stopped again. Ida Knudsen informed the boys that if they were not going to start the car she would go home, and started toward town. According to the undisputed evidence, after running a short distance she asked prosecutrix if she was coming and the latter responded that she could not. Ida testified that prosecutrix then “screamed a heavy, shrill scream,” and that she saw O'Meara grab her around the shoulders and the last time that she saw her “O'Meara was holding her by the shoulders.” Rathburn and prosecutrix agree that O'Meara so did and the latter, as will appear later, admitted this. Ida testified further that she ran to a garage near the depot without calling for help, although passing many houses which were lighted, and that from the garage the proprietor and a doctor took her home in the latter's automobile, and that she told them what had happened to prosecutrix. The girls were agreed that neither had seen either of the boys previous to that night and did not know them, but O'Meara insisted that he had been in school with and had known Ida Knudsen. The latter swore that the defendant had given his name as Johnson, and that Rathburn had tried to kiss her when near the cemetery. She admitted having done nothing to rescue prosecutrix and explained that she did not think about giving the alarm to any one she did not know, and did not suggest at the garage nor offer to show the way to the car where prosecutrix had been detained. The proprietor of the garage corroborated the witness concerning what she had said there and that she had been taken home, as did also the doctor, and said further that she wanted them to take her home and then go back and see what became of the other girl.

The prosecutrix swore to having been in the employment of Mrs. Meents in Ida Grove; that at about 2 o'clock in the afternoon she visited her sister and went to the home of her parents, where she stayed until about 7:30 o'clock in the evening; that she then went to the home of Ida Knudsen, and substantially as related by the latter concerning what was done until the automobile stopped in the lane and Ida started back to town; that she then started to get out but that defendant held her in the seat by the shoulders; that to Ida's question as to whether she was coming she answered that she could not and screamed; that defendant then choked her and told her to “shut up, you damn fool, or I will kill you”; that one of the boys then took her by the feet and the other by the shoulders and lifted her to the ground near the car; that she was screaming all the time and trying to get away; that the one who had carried her by the arms held her arms over her breasts, being back of her head, and that the other lifted her dress, tore open her underwear, and had sexual intercourse with her; that immediately thereafter the latter changed positions with the one at the head who also had sexual intercourse with her; that all this was done without her consent and while she was resisting to the extent of her strength; that she then got up and, finding her hat, returned to town and on to her home, to which she was admitted by her father, and went directly to her mother's bedroom and told her what had happened; that her hair was down and full of leaves and her coat dirty, her face scratched near one eye, one leg scratched below the knee, and a bruise on each arm; that there was a hole in one stocking; that her underwear was torn and stained with blood. These garments were identified and introduced in evidence, as was her waist worn that night and appearing to have been torn. She testified that these garments were entire previous to the ride, and that she returned to her employment at about 10 o'clock the next morning and did a washing. Her father, mother, sister, and the sheriff corroborated her testimony concerning her hair being down and leaves therein and that she was crying, and Mrs. Meents corroborated her story as to the bruises. Dr. Conn swore that he examined her person the following day and found a bruise on each arm and a scratch on her face and right leg and that the latter was bruised, and that her sexual organ was in “an ordinary condition for a girl of her age. It was open enough to have been penetrated, and some secretions.” On cross-examination he said that there was no external laceration of the organ; that there was no hymen; but that it might be absent and there have been no intercourse.

Ernest Rathburn, who had previously been convicted of having committed rape on prosecutrix, told the story substantially as did prosecutrix, saying that O'Meara restrained her in the seat of the automobile; that they lifted her to the ground; that each had intercourse with her, and that she was struggling and trying to get away all the time; and that this happened in the lane about 100 yards from the end of the bridge. Both defendant and Rathburn swore that on the next day about noon they drove to Denison, from there on to Council Bluffs and Omaha, and then went about 30 miles west of Omaha, where they picked corn for 2 1/2 weeks, after which they returned to Omaha, drove to St. Joseph, Mo., came back to Council Bluffs, and then on to the home of Rathburn's brother about 6 miles from Ida Grove, and there learning that they were wanted, proceeded to town the day following their return and were arrested. Rathburn admitted having stated repeatedly that O'Meara had not had intercourse with prosecutrix, and explained that they had made it up that each would so state with regard to the other. A girl about 16 years of age and a widow woman testified that these boys had taken them out riding, accompanied by the widow's baby, starting a few minutes after 7 o'clock in the evening in question and drove to a schoolhouse about five miles out of town, where the women left the car and walked back, the boys driving the automobile in. Two other young women related that later these boys accosted them from the car, inviting them to take a ride, and one of them, in answer to the question as to when she first saw them, answered: “About half past 8 or 9; about half past 9. Q. Do you know for sure? A. No, sir.”

The defendant testified substantially as did the other witnesses concerning the occurrences up to the time he stopped the automobile in the lane; that Ida Knudsen left the car; that he took hold of the shoulders of prosecutrix, who was sitting with him, and kept her in the seat; that when she insisted on getting out he allowed her to do so; that he then went down the road to look for the other girl and was gone about ten minutes; that upon his return he saw prosecutrix and Rathburn getting up from the ground; that he picked up her hat and handed it to her; that he requested her to ride back with him and she refused, saying if the other girl was going to walk she was too; that she appeared to be mad at Rathburn; that Rathburn said that “he would get into a little trouble”; that “he had a hard time getting what he wanted.” The witness then told of the trip to Nebraska substantially as had Rathburn, and explained that in the morning of November 5th his father had refused him a team to use in picking corn for a neighbor, and had also informed him that he could not have the automobile any more because he did not go to church that Sunday, and denied him the privilege of riding to town with him, and that thereupon he told his father that he would leave home, and proceeded to pack his clothes and left in his Ford automobile about noon that day; and this account was fully corroborated by the testimony of his father and mother. The witness was cross-examined as to the occurrences in the lane as follows:

“Q. And Ida got out there? A. Yes, sir. Q. The curtains were still on the car, weren't they? A. Yes, sir. Q. Elsie was going to get out? A. Yes, sir. Q. She tried to get out of that car? * * * A. Yes, sir. Q. And you stopped her from getting out? A. Yes, sir. Q. You held her in the car? A. Yes, sir. * * * She didn't scream. She didn't...