State v. Philpot

• Decision Date: 07 April 1896
• Citation: 66 N.W. 730,97 Iowa 365
• Parties: STATE v. PHILPOT.
• Court: Iowa Supreme Court

97 Iowa 365

66 N.W. 730

STATE

v.PHILPOT.

Supreme Court of Iowa.

April 7, 1896.

Appeal from district court, Taylor county; H. M. Towner, Judge.

Defendant was jointly indicted with one Melville Philpot, his cousin, for the crime of rape. Melville was first tried, and acquitted. Defendant, upon his trial, was convicted of the crime of an assault with intent to commit rape, and was sentenced to the penitentiary for the term of five years. He appeals. Reversed.Maxwell & Winter, for appellant.

Milton Remley, Atty. Gen., W. M. Jackson, Co. Atty., and Jesse A. Miller, for the State.

DEEMER, J.

Defendant and his cousin met the prosecutrix, a young woman about 19 years of age, by the name of Mary A. Winslow, at a picnic which was being held in a grove in Taylor county, Iowa, on the 30th day of August, 1894. At the request of defendant or his companion, they all entered a buggy belonging to the men, and drove south from the picnic grounds, on the highway, and from there turned into a clump of bushes or thick timber, where the men each had sexual intercourse with the prosecutrix. It is claimed by the state that the defendants, by force, pulled or dragged the woman from the buggy, and had connection with her against her will; that each of the men had intercourse with her while the other held her. On the other hand, the defendant, while admitting the intercourse, says that it was had with the consent of the prosecutrix. The jury found there was no rape, but found the defendant guilty of an assault with the intent to commit rape.

1. It is contended that the court erred in overruling a challenge interposed to one of the jurors. It appears that this juror heard a part of the evidence and part of the arguments on the trial of the case against Melville Philpot. But he said that he had neither formed nor expressed an opinion as to the merits of the case, nor had he any opinion as to the guilt or innocence of the defendant. The challenge was properly overruled.

2. Melville Philpot was a witness for the defendant, and, in his examination in chief, testified, in substance: That the prosecutrix came up to where defendant and he were standing, and, without any previous introduction, saluted them with the remark, “How do you do, boys?” That they entered into a commonplace conversation with her at first, which finally led to his asking her if she did not wish to take a buggy ride, to which she responded that she did, and that he then asked her if she would “do business” if they took a buggy ride, and she said she would. And, in response to an interrogatory as to whether both men should go or not, she said she did not care. That it was arranged that the two men should go ahead to where the buggy was standing, and that then she should follow,--this in order that they might not attract attention. That they went to where the buggy was, and that she and witness got in while defendant went down the road about 100 yards, where he stopped and waited until the buggy came up, and then got in. That they drove to where there were some scattered trees and saplings, and that after some conversation the prosecutrix voluntarily alighted from the buggy, and that all parties went to where there was some thick brush, and that defendant had intercourse with the woman while the witness kept watch, and that he (witness) afterwards had connection with the prosecutrix while defendant kept watch. On cross-examination the witness was asked what the object was in going to the picnic grounds, and he stated that they had no particular object; that they simply concluded to go; that they were acquainted with a few people there, and had frequently visited in the neighborhood. Witness was then asked if he knew A. J. Gordon, and he stated that he did. He was then asked this question: “Q. On the picnic grounds, on the day you say you were there, didn't you ask Mr. A. J. Gordon if he could not put you (meaning you and your cousin, the defendant in this case) onto some ‘banging,’ meaning by that to obtain information as to whether or not you could obtain sexual intercourse with some female?” To which defendant's counsel objected as immaterial, irrelevant, and not proper cross-examination, and for the further reason that the question was not proper as a foundation for impeaching purposes, because it called for a matter immaterial to the issues. Upon this objection the court made the following ruling and remarks: “The Court: The objections are overruled. This witness has already testified that he was himself seduced, practically, according to his testimony, by his statement that this lady invited him out, or something to that effect. Now, if it can be shown on cross-examination, or by asking him impeaching questions, that this witness went there for this specific purpose, it is a contradiction of his testimony.” The defendant objected and excepted to the remarks made by the court, and now urges that they were erroneous, and prejudicial to the rights of the defendant. He also contends that the objection to the question should have been sustained. We think the question propoundedwas a proper one, for the answer tended to show the purpose and intent of the witness in going to the grounds, and his object in meeting the prosecuting witness. Concede, for the purpose of argument, that it related to a collateral matter, and that the state would be bound by the witness' answer, yet it does not follow that the fact sought to be elicited was immaterial. It was legitimate cross-examination, under any theory of the case. The more serious question relates to the remarks made by the court in passing upon the objection. These remarks were made, it is true, in the heat of the trial, and were, no doubt, called out by something that was said by counsel, either in the objections interposed, or in the argument made in support thereof, and were not uttered with intent to prejudge the case, or prejudice the effect of the witness' testimony. But it is a matter of common knowledge that jurors hang...