State v. Pillsbury

• Decision Date: 13 March 1923
• Docket Number: 34942
• Citation: 192 N.W. 241,195 Iowa 569
• Parties: STATE OF IOWA, Appellee, v. LEWIS PILLSBURY, Appellant
• Court: Iowa Supreme Court

192 N.W. 241

195 Iowa 569

STATE OF IOWA, Appellee, v. LEWIS PILLSBURY, Appellant

No. 34942

Supreme Court of Iowa, Des Moines

March 13, 1923

Appeal from Mills District Court.--EARL PETERS, Judge.

DEFENDANT was convicted of the crime of assault with intent to commit rape, and sentence was pronounced on the verdict. Defendant appeals.--Reversed and remanded.

Reversed and remanded.

W. S Lewis and D. E. Whitefield, for appellant.

Ben J Gibson, Attorney-general, and C. H. Cook, County Attorney for appellee.

ARTHUR, J. PRESTON, C. J., EVANS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

The indictment charged the defendant with the crime of rape. At the conclusion of the evidence for the State, the trial court withdrew from the consideration of the jury the charge of rape, and submitted to the jury the included offenses of assault with intent to commit rape and simple assault. At the conclusion of the State's evidence, defendant moved for a directed verdict in his favor, which motion was overruled. The jury returned a verdict finding the defendant guilty of assault with intent to commit rape. Defendant then filed a motion in arrest of judgment and for a new trial, which motion was overruled. Judgment was entered against defendant, committing him to the penitentiary at Fort Madison for an indeterminate period not exceeding 20 years, from which judgment this appeal is prosecuted. Defendant assigns several errors in the trial and submission of the case to the jury, on which he relies for reversal. A brief statement may be made, as follows:

Defendant was charged with committing the crime of rape upon his own daughter, Lucille Pillsbury, a child 11 years old, who, at the time, was living with her father in the town of Malvern, Iowa, together with a housekeeper, Mrs. Emma Pabst, a daughter of Mrs. Pabst's, Lola Pillsbury, the sister of prosecutrix, and a brother of the defendant's, C. C. Pillsbury. The wife of defendant and mother of Lucille and Lola had died a year or two before the time involved in this case. The prosecuting witness, Lucille Pillsbury, had been sleeping with her sister Lola, prior to some time in the fore part of December, 1921. Lola was a girl 10 years old. Lucille and Lola had some trouble, and about the first of December, Lucille went upstairs to sleep with her father, and continued to sleep with her father, defendant, up to and including the night of December 28th, when the assault charged is claimed by the State to have taken place, when she ceased to sleep with him.

For the purpose of considering errors assigned to the admission of portions of the testimony of the prosecuting witness, Lucille Pillsbury, and Drs. Scott and Caughlin, called by the State, we set forth the testimony of such witnesses.

I. Lucille testified that she remembered the night of December 28th, which was on the Thursday following Christmas; that, prior to December 28th, for about one month, she had been sleeping with her father upstairs, and that during that time no one else slept with her; that, on the night of December 29th, she slept in another room upstairs by herself; that she did not want her father to do what he had been doing. She further testified that she went to bed first on the night of December 28th, and when her father came to bed with her, he unbuttoned her underwear and pulled her over on top of him and tried to have sexual intercourse with her. In answer to a leading question, to which apt objection was made, she stated a particular act done to her by her father; that she had been sleeping with her father every night for about a month prior to this time; that prior to this time her father had handled her indecently; but that on this night was the first time he had ever unbuttoned her clothes and attempted intercourse; that she told Mrs. Pabst, the housekeeper, of the occurrence, on the night of December 30th; that she had a kind of a stomach ache down below; that she was examined by Dr. Scott on Sunday and by Dr. Caughlin on Monday; that she complained of the occurrence to Mrs. Bertha Schutts; that she had gone to sleep with her father because her sister, Lola, with whom she had been sleeping, tickled her; that the night her father assaulted her, she had on winter underwear, buttoned up behind, and bloomers and a flannel nightgown.

Dr. J. R. Scott, a physician of 37 years' practice, called by the State, testified:

"I made an examination of the private parts of Lucille Pillsbury on January 1, 1922. At the time of this examination, she showed evidence of having been markedly mistreated. There was extreme tenderness across the lower part of the abdomen, and the private parts were very much swollen and inflamed and tender, and a good deal of redness of the parts. Q. From your examination, Doctor, the first day of January, I want you to give this jury your opinion as to whether or not someone, in your judgment, attempted and had had a partial intercourse with Lucille Pillsbury. (Objected to as incompetent and immaterial. Overruled. Defendant excepts.) A. I should judge from all the evidence and everything there had been an attempt, and possibly a partially successful attack. Q. Of what? A. Of intercourse, sexual intercourse. (Defendant moves to exclude the answer, for the reason that it is not responsive, and too uncertain. Overruled, and defendant excepts). A. There was redness of the external parts, redness and congestion. There might be many ways how this could happen. I could not tell whether anybody had attempted to have sexual intercourse with that little girl from my examination. Well, in a way, it might be a guess, and, well,--more than a guess. It would be impossible to state whether anyone had had sexual intercourse with this little girl. I would say there was an attempted sexual intercourse. From the examination, I made up my mind there had been an attempt."

Dr. G. V. Caughlin, a physician of 9 years' practice, called by the State, testified:

"I made an examination of Lucille Pillsbury on January 2, 1922. The vulva and vagina of this child showed considerable swelling and redness as a result of injury from some object. The hymen was ruptured. The hymen is the membrane which is situated at the entrance of the vagina, and in this case it had been broken, as though there had been some attempt made to enter the vagina."

The witness was asked to state from his examination what his opinion was as to whether or not someone had attempted sexual intercourse with Lucille, and the doctor answered, over objection by defendant, "I should say an attempt had been made."

"Q. What would you say, as a matter of opinion, as to whether or not that attempt had been, partially at least, successful? (Objected to as incompetent, immaterial, and calling for a conclusion. Overruled.) A. Yes, sir."

The witness testified, on...