State v. Stevens

• Decision Date: 13 March 1907
• Citation: 133 Iowa 684,110 N.W. 1037
• Parties: STATE v. STEVENS.
• Court: Iowa Supreme Court

133 Iowa 684

110 N.W. 1037

STATE

v.STEVENS.

Supreme Court of Iowa.

March 13, 1907.

Appeal from District Court, Polk County; James A. Howe, Judge.

The defendant was convicted of having committed the crime of rape, and appeals. Affirmed.Frank S. Shankland and Vincent Hogan, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Ass't Atty. Gen., for the State.

LADD, J.

The defendant is accused of having had sexual intercourse with Myrtle Rasler, a child under 10 years of age, in the night of September 29, 1905. She was occupying a bed with two younger sisters on one side of a room, and defendant's bed was on the other side. The kitchen was the next room, and the room beyond that was occupied by the child's mother. Her father was temporarily absent, and her two brothers--the oldest being 11 years of age--appear to have slept in the kitchen. The doors between the rooms were open, but the outside doors were locked, and there was no one else in the house. Shortly after 1 o'clock in the morning, defendant entered the kitchen, and informed Mrs. Rasler that she had a mighty sick girl, and had better come up and attend to her. The mother found Myrtle crying and vomiting, and as she was unable to walk, carried the child to her bed. Defendant advised against calling a doctor, but she was attended by a physician on November 1st, who found that she was afflicted with peritonitis, and some days later an examination revealed the fact that her hymen had been ruptured recently. The child testified that defendant had committed the offense charged immediately before he called her mother. But three errors are assigned.

1. Whether defendant was guilty of assault or of assault and battery was not submitted to the jury. Nor should they have been. The indictment charges that the accused “did willfully, unlawfully, and feloniously, carnally, and abuse one Myrtle Rasler,” a child under 15 years of age. She testified that nothing was said at the time, but that two days later he threatened to shoot her if she told. She further testified: “I cried, and he choked me when he was in bed with me. I cried all night. My mamma carried me over to her bed. I was in bed about four weeks.” The defendant denied the charge in toto. Whether the choking occurred in perpetrating the crime or afterwards does not appear, though the plain inference is that it was subsequent. In the absence of evidence of force in the perpetration of the offense, save as incident to the act charged, and in view of the defendant's denial, we think he must have been found guilty of one of the higher offenses, or acquitted, and that the case is ruled by State v. King, 117 Iowa, 492, 91 N. W. 768, and State v. Sherman, 106 Iowa, 684, 77 N. W. 461.

2. Again it is complained that there was no corroboration such as the statute requires, tending to connect the defendant with the commission of the offense. It affirmatively appeared, however, from the testimony of others than the child that the accused was the only person in the house at the time capable of committing the act. This, in connection with the immediate circumstances corroborating her testimony that the crime was committed at that time, was proof of something more than mere opportunity; for, by excluding the possibility of any one else having committed the offense, and confirming the child's story that it was then committed there under the circumstances, tended to single him out as the real...