State v. Scroggs

• Decision Date: 07 October 1903
• Citation: State v. Scroggs, 123 Iowa 649, 96 N.W. 723 (Iowa 1903)
• Parties: STATE OF IOWA v. L. P. SCROGGS, Appellant
• Court: Iowa Supreme Court

96 N.W. 723

123 Iowa 649

STATE OF IOWA v. L. P. SCROGGS, Appellant

Supreme Court of Iowa, Des Moines

October 7, 1903

Appeal from Shelby District Court.--HON. W. W. MACY, Judge.

THE defendant was convicted of assault with intent to commit rape, and appeals.

Affirmed.

Byers & Lockwood for appellant.

Chas W. Mullan, Attorney General, and Chas. A. Van Vleck Assistant Attorney General, for the state.

OPINION

LADD, J.

The case was tried on the theory that the defendant was accused of an assault with intent to rape a female under fifteen years of age.This appellant insists was error, for the reason that the indictment charged the assault to have been committed with force and against the will of prosecutrix.Counsel seems to rely upon decisions to the effect that under an ordinary indictment for rape, or assault with intent to commit rape, in which the age of prosecutrix is not mentioned, conviction cannot be had without proof of force and the absence of consent, even though it appear in the course of the trial that she be under the age of consent.SeeState v. Johnson, 100 N.C. 494(6 S.E. 61);Vasser v. State, 55 Ala. 264;Bonner v. State, 65 Miss. 293(3 So. 663);State v. Haddon, 49 S.C. 308(27 S.E. 194);Moore v. State, 20 Tex. Ct. App. 275;Nicholas v. State, 23 Tex. Ct. App. 317(5 S.W. 239);Jenkins v. State, 34 Tex.Crim. 201(29 S.W. 1078).The ground of these decisions is that there is a variance between the allegations and the proof.But separate provisions for offenses against a child and one over the age of consent are prescribed by the statutes of the states in which these rulings were made, and hence the necessity of distinct averments with respect thereto.In this state the offenses are defined in the same section of the statute, and the punishment is the same.Code 4756.In these circumstances, according to several authorities, the indictment may charge in separate counts carnal knowledge of a female under the age of consent and of such knowledge by force and against her will.Grimes v. State, 105 Ala. 86(17 So. 184);State v. Dalton, 106 Mo. 463, 17 S.W. 700(17 S.W.);17 Ency. P. & P. 661.Where this is not done, however, and the female is alleged to be under the age at which consent may be given, it is uniformly held that statements of the exercise of force against her will, found in the indictment, are mere matters of aggravation, and to be treated as surplusage.McComas v. State, 11 Mo. 116;State v. Horne, 20 Ore. 485(26 P. 665);Davis v. State, 42 Tex. 226;State v. Erickson, 45 Wis. 86.

II.A certificate of the baptism of prosecutrix on June 11, 1893, which included a statement that she was born January 7, 1887, was received in evidence over the defendant's objection, but the ruling was changed the following morning, and the jury cautioned explicitly not to give it any consideration.The date corresponded with that testified to by her, and no other evidence of age was introduced.Conceding the evidence to have been erroneously received, we think, in view of its prompt withdrawal and the caution given to the jury to disregard it, the error was without prejudice.State v. Helm, 97 Iowa 378, 66 N.W. 751.

III.On cross-examination prosecutrix testified to having had intercourse several times previous with a physician of the village, and on redirect was allowed, over objection, to 3. EVIDENCE. state that after such intercourse, and before the alleged assault, she had noticed said physician and defendant much in each other's company.Manifestly this alleged fact of such intercourse was elicited to throw doubt on prosecutrix's veracity, and it cannot be said to have been prejudicial to defendant in the circumstances disclosed to permit a showing of such intimacy.

IV.The court in the sixth paragraph of the charge instructed the jury that "the state would not be required to show the age of said Emma Meyer by a family record or any instrument in writing; such proof may be made by oral testimony of witnesses, and said Emma Meyer is a competent witness as to her age, and such testimony may be based upon information with respect thereto, if any she may have, from her parents."It is said that while the first clause is correct in law it ought not to have been given, as no one claimed it to be necessary to prove the age of prosecutrix by other than oral testimony.As family records are commonly kept, it was entirely proper for the court to indicate that they might be dispensed with in proving age and other evidence received to establish that fact.In doing so the quantum of proof was not belittled, as contended.

V.Exception is also taken to the statement to the effect that prosecutrix was a competent witness of her own age.Such has long been the law.Says Greenleaf in his work on Evidence "In strictness, a person's belief as to his own age rests upon hearsay only, not on actual observation and recollection.Nevertheless such belief, sufficient as it is for action in practical affairs of life, ought also to be admissible in judicial inquiries, and such is the conclusion generally accepted."The court in People v. Ratz, 115 Cal. 132(46 P. 915), thus summarizes the law on the subject: "A person's age may be proven by his own testimony,...