State v. Symens

• Decision Date: 08 April 1908
• Citation: 115 N.W. 878,138 Iowa 113
• Parties: STATE v. SYMENS.
• Court: Iowa Supreme Court

138 Iowa 113

115 N.W. 878

STATE

v.SYMENS.

Supreme Court of Iowa.

April 8, 1908.

Appeal from District Court, Scott County; J. W. Bollinger, Judge.

Defendant was indicted for the crime of rape. Upon trial to a jury he was convicted of an assault with intent to commit a rape, and appeals to this court. Affirmed.F. A. Cooper and W. H. Peterson, for appellant.

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

DEEMER, J.

The prosecutrix was barely over the age of consent, and defendant is her brother-in-law. The offense is said to have been committed on an island in the Mississippi river, to which point the defendant took the girl in a rowboat. There can be no question that the verdict has sufficient support in the evidence, and, if there be a reversal, it must follow from some error committed by the trial court. Many of these are alleged, and to such as seem to merit attention we shall now refer. We extract the following from the abstract showing the record with reference to complaints made by the prosecuting witness: “Q. Did you complain of the act of Peter Symens to your mother at that time? A. Yes; I did, just as soon as I got home, and I asked her if any one was home. Q. Did you tell your mother what act Peter Symens had done to you? (Objected to as incompetent, irrelevant, immaterial, and calling for hearsay evidence. Objection overruled. Defendant excepts.) A. I just told her-- Q. Just say ‘Yes' or ‘No.’ A. I just complained to her. (Motion that answer be stricken out as not responsive. Sustained. Question read.) A. Yes, sir; I did. Q. You may state whether you told your mother that Peter Symens had had sexual intercourse with you against your will. (Objected to as calling for the conclusion of the witness; incompetent, irrelevant, and immaterial and hearsay evidence. Motion overruled. Defendant excepts.) A. Yes, sir.” Prosecutrix's mother was on the witness stand, and the following is her testimony and the record with reference to this matter: “Q. You may state whether or not your daughter, Mary Potter, at that time told you that Peter Symens had had sexual intercourse with her by force and against her will that night. A. Yes, sir. By Mr. Cooper: Object to the question on the ground that it is leading and suggesting the words in the witness' mouth. By the Court: Well, it is not a leading question. It is a suggestive question. The state has a right to the testimony. There may be some difficulty about the form of the question. The state should reword the question. By Mr. Hamann: When Mary Potter, your daughter, came home what did she say to you? (Objected to as incompetent, irrelevant, and immaterial, calling for a conversation not in the presence of defendant. Objection sustained.) By the Court: I will sustain this objection, but I will not sustain the other one now. Objection of Mr. Cooper to question is overruled.” Appellant concedes that the state may show recent complaints of the prosecutrix to the person to whom they would naturally be made; but he says that the particulars thereof are not admissible, and that, for this reason, the trial court was in error in the rulings complained of. It is true that the witness should not be permitted to detail the particulars of the complaint; but it is equally true that enough may be given in evidence to show the nature of the complaints, even though it involves to some extent the particulars thereof. State v. Barkley, 129 Iowa, 484, 105 N. W. 506;State v. Peterson, 110 Iowa, 647, 82 N. W. 329;State v. Egbert, 125 Iowa, 447, 101 N. W. 191;State v. Bebb, 125 Iowa, 495, 101 N. W. 189;State v. Icenbice, 126 Iowa, 21, 101 N. W. 273;State v. Andrews, 130 Iowa, 609, 105 N. W. 215. Following this rule, it is apparent that the court did not err in its rulings. There was nothing objectionable in the testimony given by the mother.

2. The assistant county attorney was present at an examination made by a doctor of the prosecutrix's private...