State v. Nevak

• Decision Date: 05 July 1911
• Citation: 132 N.W. 26,151 Iowa 536
• Parties: STATE OF IOWA v. FRANK NOVAK, Appellant
• Court: Iowa Supreme Court

132 N.W. 26

151 Iowa 536

STATE OF IOWA v. FRANK NOVAK, Appellant

Supreme Court of Iowa, Des Moines

July 5, 1911

Appeal from Marshall District Court.--HON. J. M. PARKER, Judge.

THE defendant appeals from a conviction for assault with intent to commit rape. Affirmed.

Affirmed.

Cummings & Mote, for appellant.

George Cosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for the State.

OPINION

MCCLAIN, J.

There was evidence tending to show that Miss Mathie Olson, the prosecuting witness, while alone in her home after dark on the evening of December 16, 1909, had her attention attracted by someone outside calling "Gunder," that being the name of her nephew, who resided about a half mile away; that the person outside, after knocking, forced open the door into the room where the prosecutrix was seated beside the stove reading by the light of a lamp, such person being identified as the defendant in this case; that the defendant attempted to shake hands with prosecutrix and offered her a bottle containing liquor, and threw down fifty cents on the table and then proceeded to warm himself by the stove after taking off his coat, something being said about coffee; that defendant said he could speak only English and Bohemian while the prosecutrix was only able to converse in Norwegian that after some time had elapsed defendant, who was a man of about thirty-four years of age, assaulted prosecutrix, who was seventy-one years of age, and attempted to have sexual intercourse with her by violence; and that prosecutrix escaped after her clothing had been partly torn and ran to her nephew's, where she screamed in distress to be let into the house, and made statements indicating that someone had attempted a criminal assault upon her.

I. The nephew of prosecutrix and his wife both testified as to the declarations of prosecutrix made immediately upon her being admitted to the nephew's house, and while she was in a state of great excitement. So far as these declarations indicated that an assault had recently been made upon her with intent to ravish, the witnesses were allowed to testify to them without objection, but so far as questions asked of the nephew's wife called for a narrative of declarations relating to what the prosecutrix then said as to the details of the transaction, timely objection was made, and it is now contended that the court erred in allowing the recital by the witness of the details given by the prosecutrix in such declarations. On examination of the record, we reach the conclusion that the witness was allowed to testify as to declarations relating to the details of the transaction which were not admissible under the rule limiting proof of complaint of the injured female in such cases to the general fact of a criminal assault with intent to ravish and the identity of the person making such assault. The rule in such cases has often been stated and need not now be elaborated. See State v. Richards, 33 Iowa 420; State v Barkley, 129 Iowa 484, 105 N.W. 506; State v. Andrews, 130 Iowa 609, 105 N.W. 215; State v. Symens, 138 Iowa 113, 115 N.W. 878. But if the declarations of the prosecutrix were made so soon after the transaction to which they related and under such circumstances that they clearly appeared to be spontaneous and unpremeditated, then they were admissible, notwithstanding the general rule excluding evidence of hearsay. McMurrin v. Rigby, 80 Iowa 322, 45 N.W. 877; State v. Andrews, supra; State v. Wheeler, 116 Iowa 212, 89 N.W. 978; State v. Peterson, 110 Iowa 647, 82 N.W. 329; State v. Egbert, 125 Iowa 443, 101 N.W. 191. We think the declarations were made at such time and under such circumstances that they appeared to be the result of the excitement produced by the assault upon the prosecutrix and her flight to a place of safety, and they were, therefore, admissible under what is generally, although somewhat inaccurately, described as the res gestae rule. Rothrock v. Cedar Rapids, 128 Iowa 252, 103 N.W. 475; Hutcheis v. Cedar Rapids & M. C. R. Co., 128 Iowa 279, 103 N.W. 779; Keyes v. Cedar Falls, 107 Iowa 509, 78 N.W. 227; State v. Jones, 64 Iowa 349, 17 N.W. 911; 3 Wigmore, Evidence, sections 1747-1751. ...