State v. Snider

• Citation: 119 Iowa 15,91 N.W. 762
• Parties: STATE v. SNIDER.
• Decision Date: 08 October 1902
• Court: Iowa Supreme Court

119 Iowa 15

91 N.W. 762

STATE

v.SNIDER.

Supreme Court of Iowa.

Oct. 8, 1902.

Appeal from district court, Jefferson county; Robert Sloan, Judge.

The defendant was convicted of an assault with intent to commit rape. From the judgment of the court below, he appeals. Affirmed.Leggett & McKemey and R. J. Wilson, for appellant.

C. W. Mullan, Atty. Gen., and C. A. Van Vleck, Asst. Atty. Gen., for the State.

BISHOP, J.

The defendant pleaded not guilty to the indictment January 7, 1901, and on his motion the case was continued to the next term of court. At the next term, and on March 25th, the state filed a motion asking that the case be not taken up for trial until March 27th, in order that the evidence of certain witnesses who were not before the grand jury might be introduced. The motion recites that the county attorney did not know of the witnesses named until March 22d, on which date a notice to the effect that the state would produce such witnesses upon the trial had been served upon the defendant. On March 26th this motion was overruled, whereupon an amendment thereto was filed by the state, asking leave, under the provisions of section 5373 of the Code, to introduce the evidence of the witnesses in question upon the trial. This request being granted, the defendant elected to have the case continued, and filed his motion in writing asking a continuance over the term. His motion was overruled, and the case set down for trial beginning April 2d. The refusal of the court to continue the case over the term is assigned as error. Section 5373 of the Code forbids the introduction of a witness in support of the indictment who was not examined before a committing magistrate or the grand jury, unless a notice in writing, stating the name of such witness and the substance of what it is expected to prove by him, shall have been served upon the defendant at least four days before the commencement of the trial. The same section further provides that: “Whenever the county attorney desires to introduce evidence * * * of which he shall not have given said four days' notice because of insufficient time therefor since he learned said evidence could be obtained, he may move the court for leave to introduce such evidence, giving the same particulars as in the former case, and showing diligence, * * * whereupon, if the court sustains said motion, the defendant shall elect whether said cause shall be continued on his motion, or the witness shall then testify.” In this case it appears without question that a notice sufficient in form and substance was served upon the defendant March 22d. The trial did not commence until April 2d, and the state was then clearly entitled to introduce the witnesses, the right being based upon the notice so served. Such right was not dependent upon, nor affected by, any order of court. The required notice having been served, and the necessary time having elapsed before the commencement of the trial, the right became absolute under the statute. It follows that the right thus given could not be affected by the fact that the county attorney, apprehending that the case might come on for trial before the expiration of the required four days, made application for leave to introduce the witnesses in question, which leave was granted, and a continuance was thereupon demanded by defendant. The defendant had the full time allowed by statute to prepare for trial, even after his request for a continuance was refused, and we think was in no position to complain.

2. According to the testimony of the prosecutrix, the alleged assault occurred about 11 o'clock a. m., while she was at home alone; immediately thereafter she went to the home of a nearby neighbor, and reported the occurrence. Her parents had gone to a town some miles away, returning home about 2 o'clock p. m. Over the objection of defendant, they were allowed to testify concerning the physical condition of the prosecutrix upon their return, and in relation to what was said by her during the afternoon concerning the alleged assault. The defendant complains that this was too remote from the time of the alleged assault to be admissible. Clearly, the complaint was made as soon as possible under the circumstances, and we think the evidence was properly admissible. Of course a complaint of the character here in question may be so long delayed as to rob it of credibility to such an extent that a court would be warranted in disregarding it; but as a rule the inference arising against the truth of a charge of the character in question, from long silence on the part of the female, is not a presumption of law, but a matter of fact for the consideration of the jury. State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519;State v. Tarr, 28 Iowa, 397;State v. Hagerman, 47 Iowa, 151.

3. The defendant complains of the refusal by the court below to give the jury an instruction asked by him, to the effect that there was no evidence corroborating the prosecutrix, tending to connect him with the crime charged. In another assignment of error he complains of the refusal of the court to sustain his motion for a new trial, based substantially upon the same ground. We have read the entire record carefully, and, without attempting to embody in this opinion any portion of the evidence, we think it sufficient to say that the evidence of the prosecutrix was so far corroborated as to justify a submission of the case to the jury. In so holding we do not lose sight of the fact that a charge of this character may be easily made by a designing person; nor do we underestimate the importance of scanning all such complaints with great care where the direct evidence of the alleged assault comes from the lips of the prosecutrix alone; and we appre ciate the necessity for the rule requiring cor roborative evidence in such cases. On the other hand, we recognize that the unreasoning passion of some men leads them to commit such assaults, and, as a rule, seclusion of place and circumstance is selected for the commission thereof. A verdict fairly supported by evidence corroborating that of the prosecutrix, especially where the record fails to disclose passion or prejudice on the...