State v. Robinson

• Decision Date: 13 May 1915
• Docket Number: No. 30116.,30116.
• Parties: STATE v. ROBINSON.
• Court: Iowa Supreme Court

170 Iowa 267

152 N.W. 590

STATE

v.ROBINSON.

No. 30116.

Supreme Court of Iowa.

May 13, 1915.

Appeal from District Court, Lyon County; William Hutchinson, Judge.

Appeal from a judgment of conviction for the crime of rape. Reversed.E. C. Roach, of Rock Rapids, and D. H. Sullivan, of Sioux City, for appellant.

George Cosson, Atty. Gen., for the State.

GAYNOR, J.

Defendant in this case was charged and convicted of the crime of rape committed upon one Bena Runge on or about the 10th day of May, 1913, in the city of Rock Rapids, county of Lyon. From the conviction, he appeals to this court.

[1] The first error assigned relates to the action of the court in permitting the prosecuting witness to testify that other parties on the same night and about the same time assaulted her and had sexual intercourse with her. The defendant admits that he had sexual intercourse with the prosecuting witness at the time, but claims that this was with her consent. He claims that he had intercourse with her twice on this day––once at the dump grounds during the afternoon, and once near the German Church in the evening. She, however, claims that there was but one act of sexual intercourse between her and the defendant and this was in the evening, somewhere up town, the exact place she is not able definitely to fix. She says:

“It was after we got across the railroad bridge. I do not know how far we went, and did not know where we were. After we got out across the railroad bridge, he threw me down and had connection with me. I cried and started to holler, and he never paid any attention to that. I kicked and tried to pull away so as to keep him away from me, but I could not do so. After that he let me walk along again, and Creglow came along and did the same thing. I scratched and tried to holler, and they never paid any attention to what I said, and then Creglow left, and Robinson, the defendant, took me along with him to the fair grounds. Then he took me in the barn at the fair grounds and made me sit down on the bed. When I got to this barn there were seven men there. The room by the barn was quite a small one, and had a bed in it.”

Thereupon the following testimony was admitted over the objection of the defendant:

Q. And then what was done? * * * Q. Robinson was there, was he? A. Yes, sir. Q. And then what was done, Bena? What did they do to you then, if anything? A. And then they all went out––all but Slim. Q. Slim? A. Yes; and he stayed in there. * * * A. And then he had connection with me. Q. Well, what did you do when he tried to have connection with you? A. Scratched and hollered. Q. And then what happened after that? A. Then he left the room and another one came in. Q. And what did he do? A. He tried the same thing. Q. And what did he do? A. He left the room without. Q. He left the room without? A. Yes, sir. Q. You kept him from it, did you? A. Yes, sir. Q. Did anybody else come in? A. Yes, sir. Q. Do you know who that was? A. Frank. Q. That is all you know? A. Yes, sir. Q. A fellow by the name of “Frank”? A. Yes, sir. Q. And what did he do, if anything? A. He did the same thing as Slim did. And then they all went out, and I stayed there, and then they all came back together and sat down. I think when they came back there were nine of them all together, including Creglow and Robinson. And then they all talked together, and two others came to the door, and then two of them went out, and they talked to those people on the outside, and then they came in, too. Then Robinson and Jack Creglow took me out, and Slim came afterwards. Robinson and Creglow took me away from the barn. Joe Robinson said that if I would tell anything about this he would find it out and kill me. This was said at the barn, and I was scared. Do not know how long I was in the barn, but it seemed a long while to me. After we left the barn Robinson and Creglow took me to the end of the fair grounds. They both took a hold of me and kept a hold of me until we got to the gate of the fair grounds. Then Slim came, and Creglow let go of me, and Slim took a hold of me the same way that he did. I had never seen or heard of Slim before that night. After Slim took a hold of me, they took me to the wagon bridge, one on either side of me. When we got to the bridge, Robinson let go of me and Slim led me along. This all occurred at Rock Rapids, in Lyon county, Iowa. Q. What did Slim do with you, Bena? A. Led me into the house. * * * A. After Robinson left, Slim led me to a house. Q. Now, I want to ask you whether or not Robinson came to that house at all, that you know of? A. No, sir.

She further testified that she did not see Creglow after he had intercourse with her until she saw him down in the room at the fair grounds. She further testified that Slim was a large man; that she had no acquaintance with him prior to this meeting; that when Slim took her into the house, the location of which she is unable to state, he made her undress and made her get into bed; he put out the light; then he came into the bed. She says she tried to get out, but he kept her there; when she attempted to get out, he made her lie down; she did not sleep any during that night; that he had sexual connection with her; that she tried to prevent him from doing so; that in the morning Slim telephoned for a team; that the telephone was in a room other than the bedroom; that he locked her in the bedroom when he telephoned; that a team afterwards came; that Slim took her out and made her get into the buggy; that there was a man called “Thomas” in the buggy at the time; that Slim gave her $1 about the time she started away; that he said nothing about money before that time. Slim was about 27 or 28 years old. This man “Thomas” took her away from the house to a wagon bridge; then made her get out. After she got out of the buggy, she went to get breakfast.

Defendant, testifying for himself touching the act of intercourse, said:

“The place where I had connection with her in the evening was at the east side of the German Church. I had connection with her there once, but did not use any force. She was willing and consented to it. After that I met some boys that I knew, and talked with them. They asked who the girl was. I told them a lady friend of mine.”

He testified:

That when he got through with the boys he went over across the railroad track and turned north, and went by the side of the factory until he got to the Rock Island tracks, and when he got as far as the depot, they met Creglow. “While we were standing there, she said she thought she saw Mrs. Hamlin coming. We went over to the Halliday's machine shed. I stood there. She and Creglow did not stop, but kept on over to the shed. I stood there to see who those people were. While I was standing there Bena and Creglow came back. Then we separated from Creglow.”

He then describes their route until they reached the fair grounds, about 8 or 9 o'clock. When they got there, they met Jack Creglow again. Thereafter he details the meeting of certain parties and conversations between the prosecuting witness and himself and the others, about six in all, but denies that any one had sexual intercourse with her at the fair grounds. After they had been in there a while, he and Creglow went over to the well to get a drink, and left the other parties there. They were gone 15 or 20 minutes. The same crowd was in the room when they got back. Bena was sitting on the bed. When they got back they stayed there about 20 minutes. Heard nothing about any abuse of Bena. They offered to take her to Hamlin's or to the preacher's, where she had resided before. She said she wouldn't go. Then we told her we would get her a room at the hotel, but she didn't want to go there. After we started to leave the fair grounds Slim overtook us. After Bena said she didn't want to go up town, Slim said she could go and stay with him, and she said, “Yes,” that she would go with him, and then Slim and Bena started south. Defendant says he accompanied them as far as the gate, but did not go to Slim's house; that immediately after Slim and Bena left Creglow and he went up town. This was about 10 o'clock at night.

Creglow testified:

“I saw the prosecuting witness at the fair grounds that night with the defendant. I was in the habit of going down there quite frequently. We met these other men halfway between the training barn and the west entrance, and we talked with them, I should say, 5 or 10 minutes. Slim, or one of the parties, suggested going back to the barn, and we started back to the barn. When we got back to the barn, one of the parties opened the barn and we went in. Then we opened the office door and went to the office. This office contained a bed, chair, stove, and table. While we were in there we talked generally; Bena sitting on the bed. Nobody said anything improper or indecent to her, and she was not assaulted. She appeared in good spirits and cheerful. Defendant and I stayed at the well 25 or 30 minutes getting a drink. When we returned, the same crowd was present. Bena was sitting on the bed in the same position in which we left her, and she said nothing to the effect that she wanted to get out. Rube was sitting in a chair in front of her. After sitting there awhile Joe and Bena and I went out together. We talked about taking her up town to Hamlin's, where she could stay all night. We were about 300 yards from the office, when Slim came up and said: ‘Where are you going?’ We said: ‘We are going to take her to Hamlin's.’ She didn't say anything then, but afterwards said she didn't want to go there. Then we proposed to take her to the preacher's house. She said she didn't want to go there, but gave no reason. We then talked of taking her to the hotel. She didn't want to go there. Then Slim said: ‘Well, she can go with me.’ I don't remember what she said, but she went. I didn't see them any more that night.”

We have set out so much of the testimony as discloses the record...