State v. Rounds

• Decision Date: 09 May 1933
• Docket Number: No. 41111.,41111.
• Citation: 248 N.W. 500,216 Iowa 131
• Parties: STATE v. ROUNDS.
• Court: Iowa Supreme Court

216 Iowa 131

248 N.W. 500

STATE

v.ROUNDS.

No. 41111.

Supreme Court of Iowa.

May 9, 1933.

Appeal from District Court, Fayette County; Carl W. Reed, Judge.

Defendant was indicted and tried for the crime of committing lewd and lascivious acts with one Clara Jean Buck, a female under 16 years of age, in violation of Code, § 13184. There was a verdict of guilty, and defendant sentenced to imprisonment for three years. Defendant appeals.

Reversed.A. C. Peterson, of West Union, and A. E. Sheridan, of Waukon, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and Martin M. Cooney, Co. Atty., of West Union, for the State.

KINTZINGER, Justice.

The indictment charged the defendant with committing the offense of lewd and lascivious acts with Clara Jean Buck. The defendant pleaded not guilty. On October 11, 1930, he called at the home of Mr. and Mrs. Buck for the purpose of securing a girl to help his wife. Mr. and Mrs. Buck lived on a farm but were both absent when defendant called. The Buck children, consisting of Harvey aged 13, Richard 11, Daisy 10, Clara Jean 7, Nellie 8, and a baby were at home. The defendant had recently rented a farm near the Bucks. His wife was sick and needed help, and he was advised that he might secure one of the Buck girls for that purpose.

The children told the defendant that they had some rabbits, and he went to the rabbit pen with them. They also told him they had some calves in the rear of the barn. He first looked at the rabbits and then went to the barn to see the calves, taking Clara Jean Buck with him. There is no necessity of going into specific details in setting out the facts.

[1] I. One of the errors complained of by defendant was the admission of testimony tending to show the commission of a similar offense with Daisy Buck at the rabbit pen just prior to the offense charged with Clara Jean Buck. In offenses of this nature the intent may be inferred from the nature of the act, and it is unnecessary to show the commission of separate and distinct acts of a similar nature as showing intent. This is the general rule. State v. Marvin, 197 Iowa, 443, 197 N. W. 315;State v. Weaver, 182 Iowa, 921, 166 N. W. 379;People v. Hunter, 218 Mich. 525, 188 N. W. 346. The reason for this rule is that the facts shown in connection with this kind of an offense sufficiently and fully infer the intent defined by the statute. In the case of State v. Weaver, 182 Iowa, 921, on page 926, 166 N. W. 379, 381, this court speaking through Justice Stevens says: “From the facts shown, the intent defined by the statute is not only inferable, but every other intention is necessarily excluded. The intent was inherent in the act itself, and could not have been an issue requiring other evidence to establish.”

This rule, however, has its exceptions. State v. Robinson, 170 Iowa, 267, 152 N. W. 590, 593. In this case we said: “The general rule is that the state is not permitted, in its efforts to establish the crime charged, to introduce evidence of another substantive offense, but the rule is that, where the acts are all so closely related, in point of time and place, and so intimately associated with each other that they form one continuous transaction, the whole transaction may be shown–what immediately preceded and what immediately followed the act complained of–for the purpose of showing the scienter or quo animo of the party charged. * * * Distinct, independent, substantive offenses, not related to the one charged, committed at different times or different places, cannot be shown against the defendant; but not so when the time, the place, the circumstances, and the parties all have relation to and are directly or indirectly involved in, the act charged at the time of its commission, or immediately before or after, and we think this is the doctrine of the cases cited.”

[2] The acts with Daisy Buck were said to have been committed on the same day, at the rabbit pen, prior to the acts charged with Clara Jean. In the cases holding that evidence of other distinct, independent, and substantive acts of a similar nature were not admitted, it was shown they were unrelated in time. In this case the evidence of his acts with Daisy Buck were so closely related in time and circumstance with the acts charged as to Clara Jean that the testimony was admissible.

[3] II. Complaint is made of the cross-examination of the defendant and that of the character witnesses produced by him. Some of the questions asked the defendant on cross-examination contained insinuations that he had been guilty of a similar offense with a girl at Postville eight years before. No such offense was proven. Such evidence on cross-examination was highly prejudicial, when taken in connection with the cross-examination of defendant's character witnesses, which was of a more serious nature.

The defendant lived at Postville, Iowa, about 1924. His cross-examination showed that in 1923 he sold stockings to some members of the Meyer family at Postville. The county attorney, on cross-examination, sought to show that the defendant might have left Postville suddenly because he had known a daughter of Mr. Meyer. After showing this, the following questions were asked of defendant's character witnesses. “Would you consider a person of good moral character if you had known that he had been guilty of lascivious acts with, or assaulting a child ten years of age in Postville?” Another: “Did you ever hear that this man had the reputation of being a chicken thief in that community?”

As it cannot be shown directly that a similar offense may have been committed by defendant at some other time or place, it cannot be shown by indirection or innuendo, as indicated by these questions.

It was reversible error for the prosecuting attorney to ask these witnesses on cross-examination questions which might indirectly inject such prejudicial matters into the case. The objections to some of these questions were overruled and others sustained. In spite of the adverse ruling of the court, the prosecuting attorney persisted in asking the same questions of other witnesses. This practice has been condemned by this court. State v. Van Hoozer, 192 Iowa, 818, 185 N. W. 588;State v. Poston, 199 Iowa, 1073, 203 N. W. 257;State v. Hixson, 202 Iowa, 431, loc. cit. 435, 210 N. W. 423, 424.

In the latter case we said: “The impropriety of much of this cross-examination is self-evident. That its natural effect upon the jury would be prejudicial is also self-evident. * * * In their effect upon the jury some of these questions were equivalent to assertions of previous evil transactions and of bad character. These questions were persisted in in spite of the adverse rulings of the court. Upon this record they were wholly lacking in justification.”

[4] We recognize the rule that it is competent on cross-examination of a character witness to ask whether there have not been rumors or reports in the community as to his bad character with reference to particular transactions. State v. Kimes, 152 Iowa, 240, 132 N. W. 180.

Referring to this rule, this court said, in State v. Van Hoozer, 192 Iowa, 818, on page 822, 185 N. W. 588, 589: “We do not intend to depart from the rule thus announced, but, in the instant case, the county attorney went much further in cross-examination than could be allowed under this rule, and supplemented this by argument highly prejudicial and exceedingly improper.”

In the case at bar the state offered evidence tending to show his reputation for truth and veracity was not good. This evidence, however, could not justify asking the questions on cross-examination hereinabove set out. The questions asked were highly prejudicial and the objections thereto should have been sustained.

[5][6] III. Complaint is also made of the court's ruling in permitting the parents, Ivy and W. G. Buck, to relate in detail the statements made to them by their children after their return home, and in permitting Clara Jean Buck to relate on the witness stand what she told her parents on October 11 about what transpired between herself and the defendant.

These statements were made quite a while after the transactions occurred. The testimony was clearly hearsay, was not part of the res gestæ, and not competent for any purpose.

Testimony of complaints made are admissible as such, but it is not permissible to allow witnesses to relate the full details of statements made to them long after the occurrence of the acts complained about. Goulding v. Phillips & Lansing, 124 Iowa, 496, 100 N. W. 516;Norman v. Chicago & N. W. Ry. Co., 110 Iowa, 283, 81 N. W. 597;Whitney v. Sioux City, 172 Iowa, 336, 154 N. W. 497;Purcell v. Chicago & N. W. Ry. Co., 109 Iowa, 628, 80 N. W. 682, 77 Am. St. Rep. 557;Hinnah v. Seaba, 193 Iowa, 1219, 188 N. W. 909;State v. Powers, 181 Iowa, 462, 164 N. W. 856;6 A. L. R. 1011.

The evidence offered greatly exceeded mere complaints but included detailed statements of what the children told them in a body and what each of the children told them separately.

Mr. Buck was asked, “What did they tell you had happened?” to which he answered, “Why they told us that there had been a man there and he drove into the yard and had opened the gate,” and then continued to relate in detail everything testified to by each of the children and more. The statements made to the parents were told them long after the defendant and the children were at the rabbit pen and the barn and a considerable time after the defendant left.

After the occurrences complained of, Richard went to the farm house of their neighbors, Mr. and Mrs. Jarchow, who came over to the Buck farm with Richard. On their return, the defendant had already left the Buck farm. They spent some time there with the children and left. Mr. and Mrs. Buck returned quite a while after the Jarchows left.

Richard Buck was more disturbed than the rest of the...