State v. Speck

• Decision Date: 23 November 1926
• Docket Number: No. 37891.,37891.
• Parties: STATE v. SPECK.
• Court: Iowa Supreme Court

202 Iowa 732

210 N.W. 913

STATE

v.SPECK.

No. 37891.

Supreme Court of Iowa.

Nov. 23, 1926.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

The defendant was convicted of statutory rape, and he appeals. Affirmed.F. T. Van Liew, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

VERMILION, J.

The prosecutrix, at that time a girl less than 16 years of age, lived temporarily, during January and a part of February, 1926, with her paternal grandmother. The appellant, her uncle, a divorced man 42 years of age, was living at the same house at the time.

The testimony of the prosecutrix was to the effect that, in the early part of January, the appellant asked her to let him sleep with her, giving as a reason that his room was unfinished and cold; that she consented, and he slept with her until she left her grandmother's house in February; that he asked to have sexual intercourse with her, and she “finally gave up to him”; that he had intercourse with her nearly every night; that the last time was on Saturday night before she went home on Monday; and that the next day she went to the Juvenile Home. The prosecutrix did not otherwise fix the date of the last act of intercourse with the appellant. Another witness testified, however, that the prosecutrix was taken to the Juvenile Home on February 16, 1926, and from this it would appear that the last act of intercourse testified to by the prosecutrix was on the 13th of February. There was testimony from several witnesses that appellant, after his arrest, admitted that he had had sexual intercourse with the prosecutrix six or eight times; that she would go to his room, or he to hers; and that he said he felt very remorseful, and talked of committing suicide.

At the close of all the evidence, the state, being required on motion of the defendant to elect on which date it would rely for a conviction, made an election in the following language:

“The state elects to stand on the last act of intercourse between Elizabeth Speck and the defendant between the 1st day of January, 1926, and the 16th day of February, 1926, and probably on the 13th day of February, 1926, Saturday.”

No objection was made to the form or substance of this election, nor was any further or more definite election asked by appellant.

[1] I. It is insisted there is no corroboration, such as is required, of the testimony of the prosecutrix as to the act of intercourse upon which the state elected to rely. It is well settled that the fact that the crime of rape has been committed by some one may be established by the testimony of the prosecutrix alone. State v. Robinson, 170 Iowa, 267, 152 N. W. 590;State v. Kessler, 189 Iowa, 567, 178 N. W. 513. The corroboration required by the statute, section 13900, is such as tends to connect the accused with the commission of the offense.

The evidence of appellant's admission that he had had intercourse a number of times with the prosecutrix during the time and at the place where she testified such acts occurred clearly tended to connect him with the commission of the last act of such intercourse, although his admission did not specifically refer to the date on which her testimony and that of other witnesses would indicate such last act had occurred. State v. Johnson, 133 Iowa, 38, 110 N. W. 170;State v. Hetland, 141 Iowa, 526, 119 N. W. 961, 18 Ann. Cas. 899.

[2] II. Complaint is made that the appellant was not permitted to show by a witness called by him certain acts of the prosecutrix which, it is claimed, showed her character to be bad. Proof of particular acts or specific facts was not admissible to show the character of the prosecutrix. State v. McDonough, 104 Iowa, 6, 73 N. W. 357. There was no error here.

[3] III. The defendant testified he was buying a piece of real estate from the father of the prosecutrix. His further testimony that, since he had been in jail, he had been served with notice of forfeiture of the contract was stricken as immaterial. The ruling was clearly right. The father of the prosecutrix was not a witness on the trial, and, in any event, the state was in no manner bound by his acts or feelings.

[4] IV. In an instruction defining reasonable doubt the court stated such a doubt might be suggested or arise out of evidence “offered” upon the trial. The statement was clearly erroneous, but it is equally clear that it could not have been prejudicial, since it authorized the jury to consider evidence offered though not introduced, not for the purpose of conviction, but to raise a reasonable doubt. State v. Patrick (Iowa) 207 N. W. 393, cited by appellant, is not in point. The instruction there considered was condemned because it, in effect, authorized the jury to consider for all purposes evidence offered although it had been excluded by the court.

[5] V. The court in the instructions defined evidence as “whatever is exhibited to a court or jury, whether it be a matter of record or writing, or by the testimony of witnesses, in order to enable them to pronounce with certainty concerning the truth of any matter in dispute.” The instruction appears to have been an attempt to define evidence generally and in the abstract. The specific objection made to it is that it permitted the jury to consider as evidence matters offered but not admitted, and particularly an alleged written but unsigned confession of the defendant's, which was produced on the trial, but not admitted in evidence. While, as an abstract statement, the language used might be properly understood by a trained legal mind, as an instruction to a jury it cannot be...