State v. Mueller
| Decision Date | 06 April 1926 |
| Docket Number | No. 35880.,35880. |
| Parties | STATE v. MUELLER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clayton County; H. E. Taylor, Judge.
Indictment for rape. The jury found the defendant guilty of assault with intent to commit rape, and from the judgment upon the verdict he appeals. Affirmed.Davidson & Davidson and V. T. Price, all of Elkader, and Wm. S. Hart, of Waukon, for appellant.
Ben J. Gibson, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.
Appellant assigns 65 alleged errors. We consider only those which are argued.
I. It is insisted the evidence is insufficient to sustain the verdict, and that motions of appellant for a directed verdict of acquittal should have been sustained.
[1][2][3] The prosecutrix is a professional roller skater, and was engaged in giving performances at a fair in Elkader. The appellant appears to have been a member of a local band that furnished music for the fair. The testimony of the prosecutrix is to the effect that after the evening performance at the fair ground appellant asked her to go riding with him in a Ford coupé; that she consented, and during the ride, while the car was standing in an unfrequented byroad with the lights turned out, the acts took place which constitute the basis for the charge of rape. It is unnecessary to set out the details of what she testified then occurred. Her testimony as to the occurrence is uncontradicted, and if worthy of credit and believed by the jury was amply sufficient to warrant a finding, if corroborated as by statute required, that the appellant attempted by force and against her will and resistance to have sexual intercourse with her, and was guilty of an assault with intent to commit rape. While her testimony indicated that appellant so far accomplished his purpose as that rape was committed, the finding of the jury that appellant was not guilty of rape, but of an assault with intent to commit rape, requires us only to consider the sufficiency of the evidence to sustain the verdict of guilty of such assault.
It is the contention of counsel for appellant that the testimony of the prosecutrix is so improbable, so contradictory, so inconsistent with certain admitted or established facts that we should say it is unworthy of belief. This contention has to do with the conduct of the prosecutrix before and after the alleged assault, the fact that she accepted the invitation of a stranger to go riding with him late at night, her uncertainty and contradictory statements as to the route they took, the limited space in the car, the condition of her clothing, the absence of marks upon the person of the prosecutrix and the appellant, and the relative age, size, strength, activity, and physical condition of the parties.
The prosecutrix was a stranger and unfamiliar with the locality. There are contradictions in her testimony. She admitted she misstated her age at the preliminary examination, explaining that she then gave the age which she assumed as a public entertainer. She admitted having made some claim for damages, and that after she testified on the preliminary examination as to her past life she wrote a letter to a former acquaintance whose name she had there mentioned, appealing to him to stand by her and defend her reputation. There was uncontradicted testimony, aside from that of prosecutrix herself, that two witnesses heard screams from a Ford coupé standing in the road with the lights out considerably after midnight; that they stopped, and prosecutrix got out of the coupé; that she seemed dazed, and was crying and shaking; that her limbs did not seem to support her; that she was dropping down and in a hysterical condition; that she was talking disconnectedly, saying “Oh, my God,” and throwing her hands to her head; that her hair was hanging down over her face and her dress was wrinkled. Upon the record we would by no means be justified in saying that the prosecutrix is wholly unworthy of belief, and that for that reason the verdict is without sufficient support in the evidence. The credibility of the witnesses and the weight of their testimony were matters peculiarly for the consideration of the jury. The testimony of the prosecutrix, with all its claimed contradictions, inconsistencies, and unfavorable admissions as to her conduct, was before the jury, and with their conclusion we cannot interfere on the ground that she was unworthy of belief.
[4][5][6][7] II. It is earnestly insisted that there is no sufficient corroboration of the prosecutrix tending to connect the appellant with the commission of the offense, as required by section 13900, Code of 1924.
The two witnesses who saw the prosecutrix get out of the car, as stated above, testified that they were traveling in an automobile; that they passed the standing car, heard screams, turned around and came back, stopping two or three rods back of the other car. One of them testified there was some one in the car, but he did not know who it was. The other, C. L. Crider, testified it was the appellant, and added:
He also testified:
On cross-examination he testified:
“Q. And of course you don't pretend to testify under oath that that was Ralph Mueller that was out there, do you? A. I wouldn't swear, no, that it was he; I would swear that it was a familiar Ford coupé.
Q. Yes, that's all you would swear to; isn't that true? A. That is all I can under oath; yes, sir. When I came from the south my lights fell on the front of that car, and when I came back from behind my lights were on the back of the car. As he turned my lights were on the side of the car, so for some distance I didn't get to see much of this car as it was turning around. I saw no one in the car from the back from the fact that there was a curtain on the back, but as the car swung to the left I saw a face through the side door. After it was turning around to go back to the left my lights were then facing west, and when he turned around he turned south to the east in a short circle.”
This witness admitted that on the preliminary examination he was asked if he saw who was driving, and answered:
“I wouldn't say, the car left there right away.”
He further testified:
“I couldn't swear to that then, and don't swear to it now.”
This was the only corroborating evidence that tended to connect the appellant with the commission of the offense. In weighing the testimony of the witness, the whole of it, both direct and cross examination, should be considered together. Perkins v. Holser, 182 N. W. 49, 213 Mich. 579. It was, we think, fairly susceptible of the interpretation that the witness saw the face of the person in the car and was satisfied in his own mind that it was the appellant, but would not testify positively that it was he. The witness appeared to be anxious to state frankly and fairly his own mental attitude. It is not always the most positive witness that is the most convincing. Unless we are to say that, because he testified only that he was satisfied in his own mind that the person whose face he saw in the car was the appellant, or because of what he said on cross-examination, his testimony was of no probative value whatever as identifying the person in the car, the weight of his testimony was for the jury. The same thing is true of his credibility as affected by his previous testimony. That the tendency of this testimony, if the jury believed therefrom that the appellant was in the car from which the prosecutrix had just alighted under the circumstances and in the condition described by these witnesses, was to corroborate her and to single out the appellant as the perpetrator of the offense, is too plain for argument. Whether there is any corroborating evidence is a question for the court, but its weight and sufficiency are matters to be determined by the jury. State v. Crouch, 107 N. W. 173, 130 Iowa, 478;State v. Bricker, 112 N. W. 645, 135 Iowa, 343;State v. Hetland, 119 N. W. 961, 141 Iowa, 524, 18 Ann. Cas. 899;State v. Vochoski, 150 N. W. 53, 170 Iowa, 246. The court instructed the jury fully and correctly on the subject of the corroboration required, saying that before the defendant could be convicted of the crime of assault with intent to commit rape they must find beyond all reasonable doubt, from the testimony of this witness alone, that the...
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