State v. Patrick

• Decision Date: 16 February 1926
• Docket Number: 36835
• Citation: State v. Patrick, 201 Iowa 368, 207 N.W. 393 (Iowa 1926)
• Parties: STATE OF IOWA, Appellee, v. LLOYD E. PATRICK, Appellant
• Court: Iowa Supreme Court

207 N.W. 393

201 Iowa 368

STATE OF IOWA, Appellee, v. LLOYD E. PATRICK, Appellant

No. 36835

Supreme Court of Iowa, Des Moines

February 16, 1926

Appeal from Johnson District Court.--RALPH OTTO, Judge.

THE defendant was indicted and convicted of rape on an imbecile.From sentence on the conviction he appeals.--Reversed and remanded.

Reversed and remanded.

Havner Flick & Powers, Henry Negus, A. E. Maine, and Ray Yenter, for appellant.

Ben J Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, and Edward L. O'Connor, County Attorney, for appellee.

ALBERTJ. EVANS and MORLING, JJ., DE GRAFF, C. J., concurs.

OPINION

ALBERT, J.

It is seriously urged that there is no corroborative evidence in this case pointing out appellant as the person who committed the crime.Such evidence is very scant, as will hereinafter appear.Whatever evidence there is of a corroborative nature comes from Mrs. Irons, the mother of the girl on whom it is claimed the act was perpetrated.

The alleged crime is said to have been committed at the office of appellant, who is an eye, ear, nose, and throat specialist.Mrs. Irons went to the office for the girl, and took her home in an automobile.She testifies that the girl complained to her at the office, also on the way home, and after they reached their home.She also testifies to having been exercised over the absence of the girl, and other facts which will be hereinafter set out.Inquiry was then made of her as to a certain conversation had between herself and one Mrs. Kehler.She was asked:

"Q.Now I will ask you if you did not state to Mrs. Kehler, down at your home, that you didn't know anything was wrong, or suspicion anything wrong, that had taken place in Dr. Patrick's office.A.I did not.Q. Didn't you say that, in substance, to her?A.No, sir.Q.And that you never suspicioned there was anything wrong that occurred at Dr. Patrick's office until you had got home?A.No, sir."

The witness Mrs. Kehler was later put upon the stand, and the following occurred:

"Q.Did you have any conversation after that time with Mrs. Irons regarding this matter?A.Yes.Q.I will ask you if, in the second conversation you had with Mrs. Irons, if Mrs. Irons did not state to you that [here interruption occurred, the question started was read, and the examiner proceeded] that she did not suspicion there was anything wrong when she was at the office, and did not suspicion that there was anything wrong until she got home that evening--[Objected to as incompetent, irrelevant, and immaterial.Mrs. Irons was not asked a single question as to any conversation she had with this witness.]

"The Court: Sustained.[Defendant excepts.]"

It is apparent that this effort on the part of appellant was to impeach the testimony of Mrs. Irons by showing that she had made statements inconsistent with what she had given on the witness stand.The court and counsel seem to have overlooked the cross-examination of Mrs. Irons in this respect.The rule governing such impeachment is too well known to need citation of authority here.The State seeks to avoid this situation by citing authority, and claiming that the offered testimony was an attempt to impeach a matter wholly collateral and immaterial.We do not agree with the State in this respect.As heretofore shown, Mrs. Irons had testified that she was advised by her daughter, before they left the office, again on the way home, and after they reached home, that she had been assaulted by appellant.If she subsequently told Mrs. Kehler that she had not "suspicioned" anything wrong between the doctor and her daughter until after she got home, it was certainly a material matter, and would go to the weight of her testimony; and, if believed by the jury, would impeach Mrs. Irons's testimony in this respect.SeeBorough v. Minneapolis & St. L. R. Co., 191 Iowa 1216, 184 N.W. 320;In re Estate of Champion, 190 Iowa 451, 180 N.W. 174;Rose v. City of Ft. Dodge, 180 Iowa 331, 155 N.W. 170.

The question used as the foundation for the impeachment and the one propounded to the impeaching witness need not be in the exact words.Borough v. Minneapolis & St. L. R. Co., supra;Black v. Miller, 158 Iowa 293, 138 N.W. 535;Canfield v. Chicago, R. I. & P. R. Co., 142 Iowa 658, 121 N.W. 186;West v. Averill Grocery Co., 109 Iowa 488, 80 N.W. 555;Shebeck v. National Cracker Co., 120 Iowa 414, 94 N.W. 930;McDivitt v. Des Moines City R. Co., 141 Iowa 689, 118 N.W. 459.Under the situation in this case, we feel that it was prejudicial error to prevent this impeachment.

It is next urged that the court erred in permitting the prosecuting witness, Verna Irons, to be used as a witness, on the ground of her mental incompetency.We have settled the proposition in this state, under Section 11254, Code of 1924, that the competency of the witness in cases of this character is for the court to determine.State v. Alberts, 199 Iowa 815, 202 N.W. 519.The question, therefore, is whether or not the court erred in permitting her to testify.After having studied the record with care, we are not disposed to disturb the court's ruling in this respect.It is true that her evidence is very unsatisfactory, and in many instances contradictory; but, at the same time, we are not disposed to reverse the court in this respect.

In the prosecution of a charge of this kind, imbecility is an essential element, and the fact of such imbecility must be established beyond a reasonable doubt.State v Haner, 186 Iowa 1259, 173 N.W. 225.It therefore becomes the burden of the State to establish beyond a reasonable doubt that Verna Irons was a female naturally of such imbecility of mind or weakness of body as to prevent effectual resistance.Section 4758, Code of 1897.The following is the testimony introduced to support this allegation. ...