State v. Spridgen, 47560

• Citation: 241 Iowa 828,43 N.W.2d 192
• Decision Date: 13 June 1950
• Docket Number: No. 47560,47560
• Parties: STATE v. SPRIDGEN.
• Court: United States State Supreme Court of Iowa

Page 192

43 N.W.2d 192

241 Iowa 828

STATE v. SPRIDGEN.

No. 47560.

Supreme Court of Iowa.

June 13, 1950.

Chas. P. Howard, of Des Moines, for appellant.

Robert L. Larson, Attorney General of Iowa, Don Hise, First Assistant Attorney General of Iowa, and A. V. Hass, Lucas County Attorney, of Chariton, for appellee.

SMITH, Justice.

Defendant, aged fifty-one, was charged with incest alleged to have been committed with his step-daughter, Anna Rose Tyler, aged fifteen years. He was married to prosecutrix's mother a little more than three years before the alleged commission of the act. The girl's mother had been married and divorced twice before her marriage to defendant.

Defendant assigns six errors but makes no specific argument on any one of them. In fact it is difficult to know from the argument just what points are really relied on for reversal.

The state's witnesses were the girl, her mother and a doctor. The girl, Anna Rose Tyler, testified to two acts, one in June, the other, about October 9, 1948. There is some suggestion of force on the first occasion. 'He threw me down and we had sexual intercourse. After he was through, he told me if I ever told he would kill me, so I never told anyone.'

She said the other time: 'He started to throw me down. I said I didn't want to. He said you done it once it wont hurt you to do it again. I said it will. He said I have got you now and had intercourse with me then * * *.'

Defendant's wife testified to having seen some lascivious acts of defendant toward her daughter on two occasions. It appears from the testimony of prosecutrix and a medical witness that she was, on March 19, 1949, found to be pregnant 'probably five months.'

Defendant pleaded not guilty and testified 'I * * * never had sexual intercourse with her (prosecutrix) at any time.' He did not otherwise deny or explain the circumstances testified to. Five witnesses testified to his good 'general moral reputation and character.' On rebuttal the sheriff of Lucas County said it was 'not good.'

Verdict of guilty was returned and judgment rendered thereon from which this appeal is taken.

I. Defendant attempted to introduce court files in the case of State of Iowa v. M. J. Mitchell (a former husband of his wife) and Fay Spridgen v. Ray Spridgen, a pending divorce suit between his wife and himself. It is claimed that in the first his wife filed criminal proceedings against her then husband; and that the present prosecution she is seeking evidence to aid her in the pending divorce proceedings.

The trial court correctly sustained objection to the offer of these court files. The fact of the pending divorce case was admissible to show her interest as bearing on her credibility as a witness, but it had already been shown upon her cross-examination. The entire court file was unecessary to show it. As to the criminal case against the former husband we see no relevancy or materiality in the court files or in the fact she instituted the proceedings.

II. There is no merit in defendant's contention that a verdict should have been directed in his favor. The relationship between defendant and his step-daughter is clearly within the statutory definition of the crime charged. See sections 704.1 and 595.19, Code 1946, I.C.A., Lockerby v. Hollowell, 210 Iowa 623, 231 N.W. 375. The commission of the act is testified to by the prosecutrix. If her testimony was competent there can be no doubt of the sufficiency of the evidence to create a jury question.

It is urged in the motion to direct, but not argue here, that prosecutrix was an accomplice whose testimony (under section 782.5, Code 1946, I.C.A.) needed corroboration tending to connect defendant with the commission of the alleged act and that such corroboration was wanting. The undisputed testimony shows the girl was just over fifteen when the second act was alleged to have been committed. Under the law a girl of that age is incapable of consenting (section 698.1, Code 1946, I.C.A.) and cannot be an accomplice. State v. Goodsell, 138 Iowa 504, 116 N.W. 605; State v. Pelser, 182 Iowa 1, 13, 163 N.W. 600; State v. Sparks, 167 Iowa 746, 750, 149 N.W. 871.

The court instructed that if prosecutrix was found to be under the age of sixteen she could not legally consent to intercourse and could not be an accomplice, but that if over sixteen and consenting she would be an accomplice; and that the burden was on the state to prove her under that age or, if sixteen or over, to prove that she did not consent.

Defendant's counsel, by not arguing the assignment, evidently concluded there was no error in the court's instructions and refusal to direct verdict. We agree with such conclusion.

III. Defendant requested an instruction on included offenses of assault with intent to commit incest, assault and battery, and simple assault. The trial court submitted only the first, omitting assault...