State v. Sells

Decision Date10 February 1910
Citation145 Iowa 575,124 N.W. 776
PartiesSTATE v. SELLS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Clarke County; H. M. Towner, Judge.

Indictment for assault with intent to commit rape. Verdict and judgment of guilty, and defendant appeals. Reversed.Temple & Temple, J. H. Jamison, L. E. Crist, and J. A. Penick, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

WEAVER, J.

The case to be here considered is an unusual one in many of its features. It was tried in the court below with an eminent degree of fairness, and, aside from certain minor propositions which we need not consider, is presented here upon an exception to the sufficiency of the evidence, and especially to the sufficiency of the corroboration. The defendant is a physician residing and practicing his profession at Osceola in Clarke county, where he maintained a private hospital or sanitarium at which, at the time in question, there was employed a Miss Sampson as nurse, or assistant. At the date of the alleged offense defendant was 38 years old, married, and living with his wife. He had been practicing medicine about 15 years, most of the time in Clarke county. His character and reputation prior to the charge made in this case have not been put in issue, and he is entitled to the presumption that they were good. Miss Hartman, the person upon whom the alleged assault was committed, was then an unmarried woman about 23 years of age, and had not resided in Clarke county until June, 1908, when she came to Osceola to visit the family of a cousin living there. She had for a time been a student in college, and had also been employed as a stenographer. Her character for truth and virtue is also unimpeached. The circumstances of the alleged crime as stated by her are substantially as follows:

Soon after her arrival in Osceola she found herself troubled with slight deafness, and when she spoke of it to her cousin, Mrs. Smith, the latter said that Dr. Sells was her family physician and suggested that Miss Hartman consult him. On June 27th, the two women went to the doctor's office at the sanitarium and made known their errand. He made a somewhat superficial examination, suggested that the trouble probably arose from catarrh, and after applying a remedy suggested that she return on the following Monday, June 29th. On the date so fixed she returned to the sanitarium alone. At one place in her testimony she says that upon this visit she found other patients there for treatment, but recurring to the subject later she states that she saw no one else there except Miss Sampson whom she met or saw for a moment in the hall. Defendant gave her a treatment substantially as on the first visit and engaged her in a conversation in which he told her she was in a worse condition than she suspected. He said her trouble had its cause in “the displacement of the private organs,” and that he “had cured a girl in that way.” She further says he produced a book which he said would illustrate her ailment and in so doing he opened the volume of “pictures of nude men and women and while he didn't explain anything he left it for her to see.” He also showed her “specimens in small glass jars, and a skeleton,” and told her they “pertained to the trouble he had been talking about.” Before she departed he told her he would have to make further examination with electricity and made an appointment for her return for that purpose on Wednesday, July 1st. When that day arrived she went again to the sanitarium alone. Arriving there she saw nothing of Miss Sampson and went alone with the doctor into what she calls “the dark room” where he again examined her ear and nose and put some liquid in her mouth which he told her to swallow. He then directed her to go into a bathroom, but a few feet away, and remove her clothes and put on a kimona which was there. She followed his direction, removed all her dress except the “lower portion of her underclothes.” While putting on the kimona she felt sick (which she attributes to the medicine or liquid the doctor had given her) and sat down upon a lounge or couch which was in the bathroom. While sitting there the doctor came in with a cloth in his hand and told her to lie down on the couch, which she did, when he opened the kimona and placed the cloth which was saturated with something that “smelled like alcohol” upon her breast. Then, she says, he sat over me and was talking and I felt like I was going down, down and down and lost my senses.” She claims to have retained some degree of consciousness for a time and to realize that defendant removed the remainder of her underclothes and examined her person when she became wholly unconscious, though as it seemed for “an instant” only, and when she aroused from her stupor found the doctor lying upon her with his own clothing partially removed. She freed herself from him and he left the room for a time while she dressed. Then he returned and conversation ensued in which he laughed over the transaction and boasted of his conquest over another girl who had “vowed she would never let a man touch her.” After he had detained her a short time, she promised him to return later, though she says she gave the promise in order to get away and without any intention to visit him again. As she left he said to her, “You will need a friend in a month and you better come back to me.” On returning to her cousin's house she felt sick and had pain in her back. On the evening of Thursday she told Mrs. Smith of the alleged assault and at later time when she met her parents informed them also. On Friday she again went back to the sanitarium alone. Being asked to explain the reason of this visit she says: “Well, I had consulted Mrs. Smith and I thought he had probably accomplished his purpose to ruin me, and I thought I would need a friend in a month and I had better go back and find out.” Elsewhere she says that she at no time had any knowledge or consciousness that her person had been penetrated; that there was nothing in her physical condition to indicate such a thing, and after talking with Mrs. Smith she concluded that the defendant had not accomplished his purpose. On this last visit to the defendant, and with no other person in the sanitarium, she went with him into the dark room where he treated her again for her deafness. She did not ask him whether he had accomplished intercourse with her at the time of the alleged assault but says she asked him “why he had done what he had done the time before,” and according to her statement he did not reply except to ask her, “What do you take mankind for? Not one is to be trusted. I am not to be trusted.” She then went away promising him she would return on Tuesday, but did not do so, and swears she did not intend to go. When leaving the defendant on that occasion she borrowed or accepted from him an umbrella which she took to Mrs. Smith's. As to the comparatively unimportant occurrences upon the first visit June 27th, she is corroborated in most respects by Mrs. Smith, who accompanied her. For the corroboration which the statute requires tending to connect the defendant with the commission of the alleged offense on July 1st, the state relies upon the following: Two witnesses, Mr. Jackson and wife, relate a conversation with the defendant after he had been accused of the offense. He then insisted upon his innocence, and explained that upon Miss Hartman's visit to him he had removed an obstruction from her ear, that she had seen the skeleton and was nervous, and in the course of the treatment she had fainted and remained in that condition for some time. He expressed a desire to get into communication with her or her friends and suggested that Mr. Jackson see them for him and find out if the matter could not be made right. Mr. Smith testifies that after the story got abroad the defendant called upon him and asked what Miss Hartman had said and whether she accusedhim with having intercourse with her. The witness answered him in the negative, but told defendant what she had said in regard to his treatment of her. Defendant explained that he did show her on one of her visits some pictures and a skeleton which startled her and that he did so because of some questions she asked him. During this conversation he said: “I might have done what I should not have done” or “I probably did things I should not have done” or words to that effect. He also asked where Miss Hartman was and “what kind of man her father was” and whether he was one “who could be talked to as a conservative man about the matter,” and said he would like to get it settled and hushed up and would “do anything in his power to fix it up.”

On the other hand it should also be said that defendant denies having made any assault upon the prosecuting witness or any improper advances or suggestions, and denies the disrobing and the bathroom scene in every detail. He is supported in this denial by the attendant nurse who swears she was...

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