State v. Schlak
| Decision Date | 17 October 1961 |
| Docket Number | No. 50369,50369 |
| Citation | 253 Iowa 113,111 N.W.2d 289 |
| Parties | STATE of Iowa, Appellee, v. Emil SCHLAK, Appellant. |
| Court | Iowa Supreme Court |
Joseph L. Phelan, Fort Madison, for appellant.
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and R. N. Johnson, County Atty., Lee County, for appellee.
The defendant was convicted of committing a lewd act upon the body of a female child under 16 years of age, he being over 18 years of age, contrary to section 725.2, Code of Iowa 1958, I.C.A.
The sole error relied on for reversal is the admitting in evidence of prior distinct and independent offenses of a similar nature upon persons other than the prosecuting witness. The names of the witnesses and the substance of their testimony relating to the distinct offenses of a similar nature were attached to the indictment. The defendant raised the question by motion before trial. During the trial defendant objected to the evidence because it showed another crime and it was too remote as to time and place. The trial court in its instruction limited the consideration of the evidence of similar offenses to show the act charged was intentional rather than accidental, or to show motive, or to establish identity.
The prosecuting witness testified she was 15 years old and lived in Keokuk, on September 18, 1960, at about 4:00 p. m. she was walking north on 14th Street in the city of Keokuk in the vicinity of a junior high school accompanied by a schoolmate of the same age when the defendant drove by in his car and waved, he stopped his car across the street, walked over into their path, spoke to the girls and as the prosecuting witness started to walk by him he put his arm around her waist, released her as a car went by, put his arm around her waist a second time and put his other hand on her breast, he squeezed and had a good grip on her breast for a few seconds. The girl struggled and got away from him, she ran to a nearby house. Defendant ran to his car and left at a fast speed. The girls got the license number of the car. The police were called. Later on the same day the girls identified defendant at the police station. The girl friend's testimony was to a like effect.
The first similar offense testified to was related by two girls 14 years old and to some extent by a lady living in the home in front of which this occurrence took place. The testimony is while these two girls were walking along 12th Street in Fort Madison on their way home from a show at about 9:00 p. m. on April 29, 1960, defendant drove up near them, got out of his car, greeted the girls, started to walk along with them and then put his arm around one of the girls, the girls told him they didn't want him there and to get in his car, he kept walking with them, one girl hit him in the forehead with her purse, he backed away and asked, 'Well, what's wrong?', he backed away to his car and the girls ran to the lady's front porch. The two girls and lady were able to get the license number of the car as he drove around the block and past the house a second time. Both girls identified defendant as the man who accosted them, one testified to his license number as did the lady.
The second similar offense was testified to by a young girl, 14 years old at the time of the trial and nine at the time of the alleged offense. The offense occurred in September of 1955 on State Highway 16 about two miles from Denmark, Iowa. The girl was riding her bicycle from a driveway onto the highway, a car was parked there, the man in it spoke to her, she rode over to the car, the man got out of the car, he started to say something, he grabbed for her and she screamed. She then testified, 'and he sort of jumped back like he thought, 'Well, what did you scream for?'' She further testified he grabbed her off the bike, he reached for her and tried to pull her pants down. She screamed and hit him. When a car came along he got in his car and drove off. The sheriff was called, later the same week the sheriff brought the man, evidently to the girl's home, and she identified him. And she testified the man was in court and was the defendant.
I. The state concedes the general rule that one crime cannot be proved by proof of another, but contends the evidence here is admissible as one of the exceptions to the general rule and urges as stated in State v. Vance, 119 Iowa 685, 687, 94 N.W. 204:
'Evidence as to other offenses is competent to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others, and (5) the identity of the person charged with the commission of the crime on trial.'
This is the rule in other crimes as well as sex crimes. State v. Linzmeyer, 248 Iowa 31, 79 N.W.2d 206. The question of admissibility of such evidence is, is it material and relevant, does it tend to prove the particular offense or an essential element thereof? State v. Linzmeyer, supra, and State v. Triplett, 248 Iowa 339, 79 N.W.2d 391.
II. In prosecutions under section 725.2 this court held in State v. Marvin, 197 Iowa 443, 197 N.W. 315; State v. Weaver, 182 Iowa 921, 166 N.W. 379; and State v. Kinkade, 241 Iowa 1259, 43 N.W.2d 736, intent may be inferred from the nature of the act itself and that proof of separate distinct acts of similar nature is unnecessary. In Marvin and Weaver showing similar acts with others than the prosecuting witness was held reversible error. In Kinkade the testimony showed a number of similar acts with the same child over a short space of time. The state was required to elect which offense it relied on. This court held it was not error to allow the jury to consider the other acts as tending to show the lascivious lewd disposition of the defendant. See also State v. Neubauer, 145 Iowa 337, 345, 124 N.W. 312, 316. In State v. Leuty, ...
To continue reading
Request your trial
-
State v. Rainey
...years); Davis , 670 A.2d at 790 (nine years).3 "However, there is a point beyond which such remoteness may not go." State v. Schlak , 253 Iowa 113, 111 N.W.2d 289, 292 (1961) (holding five years too remote). I believe this case has passed that point, and I believe, respectfully, that with t......
-
Com. v. King
...(1962) (charge of statutory rape; evidence of sexual assault on another child admissible as part of "res gestae"); State v. Schlak, 253 Iowa 113, 116, 111 N.W.2d 289 (1961) (charge of committing lewd act on child; evidence of similar acts with three other children admissible to show motive,......
-
State v. Kelley
...be determined on such an inquiry. Mr. Vencel's testimony was material and relevant to that issue and was properly admitted. State v. Schlak, Iowa, 111 N.W.2d 289, 291; State v. Linzmeyer, 248 Iowa 31, 79 N.W.2d 206; and State v. Triplett, 248 Iowa 339, 79 N.W.2d VII. It is defendant's thoug......
-
State v. Treadaway
...in trial for statutory rape of stepdaughter held reversible error because shows only criminal character); State v. Schlack, 253 Iowa 113, 111 N.W.2d 289 (1961) (admission, for purpose of showing motive gratify lust for young girls and identity similar circumstances and license number of oth......