State v. Thomas, 34122.

• Citation: 193 Iowa 1004,188 N.W. 689
• Decision Date: 21 June 1922
• Docket Number: No. 34122.,34122.
• Parties: STATE v. THOMAS.
• Court: United States State Supreme Court of Iowa

193 Iowa 1004

188 N.W. 689

STATE

v.THOMAS.

No. 34122.

Supreme Court of Iowa.

June 21, 1922.

Appeal from District Court, Dubuque County; D. E. Maguire, Judge.

The defendant was indicted upon charge of rape, committed on the person of one Dorothy S. Hoffmann. Trial was had to a jury, which returned a verdict of guilty of assault with intent to commit rape. Motion for new trial was denied, and defendant, having been sentenced to imprisonment in the penitentiary for the term of 20 years, appeals from said judgment. Reversed.Anna M. Utt, of Dyersville, G. A. Barnes, of Dubuque, and C. E. Wheeler, of Cedar Rapids, for appellant.

Benjamin J. Gibson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

WEAVER, J.

The complaining witness is a married woman 24 years of age, and at the time of the alleged assault was living with her husband on a farm in Dubuque county, not far from the town of Dyersville. The defendant William Thomas, Jr., commonly called “Jimmie,” by which name he is spoken of in the record, is an unmarried man 33 years old, and at the time in question was living with his parents on a farm adjoining the one occupied by the complaining witness and her husband, Leo Hoffmann. In the same house with defendant lived his father, mother, three sisters, and three brothers. Of the Hoffmann family there were three members, the complaining witness, her husband, Leo, and his brother, Raymond. On September 22, 1920, Leo and Raymond drove to Dyersville with loads of wood. Concerning the occurrences following the departure of her husband and brother–in–law, we quote from the woman's direct testimony as found in the abstract, as follows:

“On the 22d of September, 1920, I was at home in the kitchen, I remember, that morning. My husband and his brother were home early in the morning. After breakfast they went to Dyersville with a load of wood, both of them, Raymond and Leo. Leo is my husband. After they started I was at home alone. They started about a quarter after 8. I was beginning to iron. We have a telephone in the house. I used the telephone that morning, after my husband and his brother started for Dyersville; about 20 minutes after. I called up Mr. Peter Hoffmann at Dyersville and talked with him. Later that morning my attention was attracted by a person that came to the house. There was a heavy tramping over the porch, and he said, ‘Mother, Mother, let me in,’ and then he went to the window, and he said, ‘Mother, Mother, let me in, or I will shoot you.’ Then he went to the door again and kicked that in, or cracked it in three places. I didn't say anything, but I was screaming all the time and hollering for Leo. Then he went to the window and pointed a gun at me, and said, ‘Mother, let me in, or I will shoot you,’ and then tried the door, pushing and kicking on it, and then went around to the other side of the house, but I couldn't get that door locked quick enough. Our house faces south. The kitchen is on the east and north. The door that he kicked was on the east side. The other door is on the west. There was a door at that time on the west side of the kitchen. I didn't see him go around. I heard him walking on the porch. I ran to the door, but couldn't get it shut quick enough. When I went to the west door, he pushed the door open and grabbed me by the throat and said, ‘Mother, let me in or I will shoot you.’ When he got inside the door, he hollered, ‘Hands up.’ He fought with me. He had me by the throat, and said, ‘Mother, be still, or I will shoot you.’ He shoved and threw me around, and got me on the floor finally. I was fighting and screaming for help. I fought with my arms. He had hold of my arms. I couldn't fight very much. I tried to get away from him. He got me on the floor and strapped my hands. He put them to my back crossways, and strapped them as tightly as he could get it, that it burned. While he was placing that strap on my hands, I was fighting and struggling as much as I could to get away and screaming. After he had strapped my hands he turned me over on my back. He then covered my face with my clothes. He put them over my head and tucked them under my neck. I was fighting and struggling all I could. I was weak. This man did not say anything while I was on the floor. He had his face covered with a veil, and had a blue faded overall on, and had his shirt sleeves slipped up from here; he had no shirt on; he had just his undershirt on; he had the bib turned in on his overalls. It was cream–colored veil. I could not say whether it was a large or small veil; he had it wrapped around his head; it was tied over his face, and he had it tied in the back in a knot. Then he unstrapped my hands and rushed out of the door, slammed the door shut, and never said a word. He just unbuckled the strap; he didn't take it off my hands. He left by the west door. I felt weak and scared. The next thing I did was to go to the telephone. Then I went upstairs and dressed and combed my hair. I then went down stairs and went over to Thomas.' That is about 40 acres away. I went down the road. I walked. I was in a weak condition, and was not able to run. When I got down near the Thomas home I saw William Thomas, Jr., standing by the gate. I said: ‘Is Myrtle there?’ I told him to tell Myrtle to come over, that there was a tramp in the house, and that I was scared to stay alone. Both of the girls and him came down, and I sat down by the telephone pole to rest a while. I was weak. I sat down about two minutes, and then the girls said I should go into the house and set down. I went into the house. Myrtle Thomas, Adeline Thomas, and the defendant went in with me. I laid down on the couch. I was weak and nervous. The girls asked if I seen a man, and I said ‘Yes,’ and they said, ‘What did he look like?’ and I said I couldn't tell. The Thomas girls asked me what happened, and I told them. Q. What did you say? A. Well, Myrtle asked me what he had done, and I told her, ‘He got the best of me.’ The defendant, William Thomas, went into the room in the Thomas home with me. He stayed in the room a while, and then he went out, and then came in and sat down again. He didn't say anything to me. He made no inquiry of this man that I complained of. He left the room after a bit; I don't know where he went to. Then Myrtle Thomas telephoned Mr. Peter Hoffmann in Dyersville. My husband had started that morning for Peter Hoffmann's home with some wood. I stayed in the Thomas house that morning about half an hour. When I left I went home. The defendant took me home. I did not ask him. The girls told me that he said he would take me home. He took me home in an automobile. After I got down to our house, I went in the house. Defendant went along. He sat down, and the strap was lying on the floor, and I said, ‘There is that darned strap,’ and he said, ‘That looks like a strap from the boy's harness,’ and I didn't say anything more then. I was weak and scared; I didn't feel like talking much. It seems to me that it was about a half hour before my husband got home. Defendant said, ‘Shall I see if the wires are cut around the house?’ and he went out and then he said, ‘I don't see any cut around there,’ and I said, ‘No, you stay here; I am afraid to stay alone.’ That was the first time the wires were talked about. When my husband came home, he came into the house without unhitching the team. Leo asked the defendant, ‘What happened here?’ and he said, ‘Some one was trying to tackle Dora.’ Leo said, ‘We ought to drive down towards Worthington, and maybe we could find him along the road somewhere,’ and he said he didn't want to have anything to do with that; that he was gone a long time ago. That was about noon. My husband put the team away. I got dinner. I said to my husband, ‘You don't need to say anything about it, but I think this was Jimmie Thomas.’ That was at the dinner table.”

On cross–examination she said, among other things:

“When this man came into my house and attacked me, his face was all covered up. I could not recognize him at that time. * * * The minute he left the house it came to my mind it was Jimmie Thomas, but did not know him while the attack was going on. Some time afterward I made up my mind it was Jimmie.”

The cross–examination further continued as follows:

“Q. Now, if you thought it was Jimmie that raped you, you wouldn't have gone right up to his house and make complaint about it and get help, would you, if you had thought it was him? A. Yes; I would anyhow. I would have gone right up to his house if I had known it was him. I wasn't afraid he would hurt me after he had raped me. Jimmie brought me down to the house. I didn't object to riding in the same seat. It was a two–seated car, and Jimmie was seated at the wheel, and as a matter of choice I climbed right in beside him and rode to my house, and that was within a few minutes from the time I say he raped me. I made no objections. I didn't say nothing to him; I didn't want to neither. Q. Now, after this brute came in and tied your hands behind you and threw you on your face to do it, and then turned you over on your back, and after, in spite of your crying and you begging and your shrieking he had sexual intercourse with you against your will, do you want this jury to understand with that knowledge in your mind that you went right up to Jimmie Thomas' house and that you talked with him and his sisters? A. Yes, sir; I did. I had it in my mind that it was Jimmie Thomas that raped me before I went up to his house. I didn't make any accusation against him when I saw him up at the house; I did not accuse him with it. His sisters were present. I didn't tell them that their brother had just violated my person; didn't say anything of that sort. I thought it was Jimmy when I got up there; I noticed it right on his clothes right away, the way he had his cuffs slipped up, and everything. I didn't want to say anything; I thought I would let this thing go, and...