State v. Petersen

• Decision Date: 11 April 1900
• Citation: 82 N.W. 329,110 Iowa 647
• Parties: STATE v. PETERSEN.
• Court: Iowa Supreme Court

110 Iowa 647

82 N.W. 329

STATE

v.PETERSEN.

Supreme Court of Iowa.

April 11, 1900.

Appeal from district court, Clinton county; James W. Bollinger, Judge.

Defendant was indicted, tried, and convicted of the crime of rape, and sentenced to the penitentiary for the term of 25 years. From the judgment imposed, he appeals. Affirmed.E. L. Miller, J. S. Darling, and Hayes & Schuyler, for appellant.

Milton Remley, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

DEEMER, J.

The prosecuting witness, a German girl of but 15 years of age, was followed by defendant from a store, whither she had gone to procure some groceries for a family for whom she was working, for a distance of about half a mile, to a turn in the road which witness was following, that was some distance from any house or building where people were living; and the state claims that defendant then and there forcibly ravished the said witness. Defendant admits the intercourse, but denies that he used any force or violence to accomplish his purpose. The act took place after dark on the evening of November 29, 1898. It is said that the indictment is bad for duplicity, in that it charges an assault, and also a rape. We will not set it out, as it is in the usual form of indictments in such cases, and is not vulnerable to the objection stated. State v. Casford, 76 Iowa, 330, 4 N. W. 32. The assault is charged as a part of the crime of rape, and, as there can be no rape without an assault, there is no objection to charging it as a part of the acts going to make up the offense.

2. Complaint is made of the court's rulings on objections to leading questions propounded to the prosecutrix. That the questions were leading is conceded, but the evidence tends to show that the witness was confused and was in an agitated frame of mind while on the witness stand, and we see no abuse of the discretion lodged in the trial court in permitting such questions. The trial court was better able than we to judge of the propriety of such an examination, and we are not inclined to interfere unless there has been a palpable abuse of such discretion. State v. Watson, 81 Iowa, 380, 46 N. W. 868; 1 Greenl. Ev. § 435; State v. Benner, 64 Me. 267. The state was permitted to show that on the next morning the prosecutrix made complaint to the people for whom she was working, and to her father, of the assault made upon her by the defendant the previous evening. Defendant claims that this complaint was too far removed in time from the principal occurrence to be received as evidence. If such testimony were admissible solely because part of the res gestæ, this contention would be of much merit. Such complaint, however, is admissible, not solely because it is part of the res gestæ, but because it is a fact tending to corroborate the evidence of the prosecutrix. State v. Richards, 33 Iowa, 420; 3 Greenl. Ev. § 213; McClain, Cr. Law, § 455. Lapse of time is not, therefore, the sole test of admissibility. But the inference arising against the truth of the charge, from silence, is a matter for the consideration of the jury in determining the weight to be attached to it. State v. Niles, 47 Vt. 82;State v. Nulkern, 85 Me. 106, 26 Atl. 1017;State v. Cross, 12 Iowa, 66. The delay in making complaint may be explained. State v. Shettleworth, 18 Minn. 208 (Gil. 191); State v. Reid (Minn.) 39 N. W. 796. In the case at bar the state attempted to explain the delay by showing that a number of persons, practically strangers, were present at the house where she was working when prosecutrix arrived home, and that they remained until after bedtime. The sufficiency of this showing was for the jury. The complaints made, as admitted in evidence, were not inadmissible because they consisted of a narration of facts. All objectionable parts were stricken out on motion of the state. It is permissible for the state to give in evidence complaints made by the prosecutrix to the effect that defendant assaulted or ravished her. The exact particulars stated by her cannot, of course, be narrated, but the fact regarding which complaint is made may be stated. State v. Cook, 92 Iowa, 486, 61 N. W. 185;State v. Watson, 81 Iowa, 380, 46 N. W. 868;State v. Mitchell, 68 Iowa, 119, 26 N. W. 44;McMurrin v. Rigby, 80 Iowa, 325, 45 N. W. 877. Evidence was also received, over defendant's objection, tending to show the schooling and mental ability of the prosecutrix. This was clearly admissible. The prosecutrix was also permitted to testify that when she made complaint she exhibited certain underclothing that she had on at the time the ravishment occurred. This underclothing was produced at the trial, and introduced as evidence. There was no error in the ruling with reference to this evidence. State v. Montgomery, 79 Iowa, 737, 45 N. W. 292;Hornbeck v. State, 35 Ohio St. 277. Complaints are made of various rulings of the court on the cross–examination of several of the witnesses. We will not set them out, as to do so would unduly extend this opinion. The rulings were generally correct. Where incorrect, they were without prejudice, because sufficiently answered at other times. Witnesses were permitted to testify as to what defendant said to them after his arrest regarding his assaulting the prosecutrix. There is nothing, save the fact that the defendant was then in custody of one of the witnesses, to indicate that the confession was involuntary. The fact that he was then in the custody of one of the parties does not show that the statements were involuntary. Com. v. Culver, 126 Mass. 464. At the conclusion of the evidence for the state, defendant moved for a verdict. This motion was overruled, and exception taken. The essential elements of the crime of rape are well understood,...