State v. Torrence

• Decision Date: 15 December 1964
• Docket Number: No. 51335,51335
• Citation: 257 Iowa 182,131 N.W.2d 808
• Parties: STATE of Iowa, Appellee, v. Ronald Gene TORRENCE, Appellant.
• Court: Iowa Supreme Court

Page 808

131 N.W.2d 808

257 Iowa 182

STATE of Iowa, Appellee, v. Ronald Gene TORRENCE, Appellant.

No. 51335.

Supreme Court of Iowa.

Dec. 15, 1964.

Charles W. Bowers and Ray Hanrahan, Des Moines, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Francis E. Tierney, County Atty., and Mark McCormick, Asst. County Atty., Fort Dodge, for appellee.

SNELL, Justice.

This is an appeal following a conviction and sentence of defendant for rape. That the unfortunate victim was brutally abused and repeatedly raped by two or more men during a period of about two hours appears without question and is not an issue on appeal. Defendant admits being present but denies any willing participation in the offense.

The evidence was sordid, shocking and nauseating. We will omit details.

At about 1:00 a. m. on May 21, 1963 the prosecuting witness and her steady boy friend (Robert Christiansen) were parked in a narrow lane off the public highway. They were indulging in some rether heavy petting to the extent that the girl had removed her clothing. Another car pulled into the lane in front of them. Defendant and two other men, David Sexauer and George Fox got out of the other car and approached the Christiansen car. Fox and Sexauer were armed with pistols. Under threat of being shot Christiansen finally unlocked the car door. The girl was pulled from the car. She identified defendant and Fox as the men who pulled her from the car. For about two hours and against her violent struggles she was subjected to abuse, indignities and, after several unsuccessful attempts by her assailants, was raped repeatedly. Her escort, Christiansen, was beaten, pistol whipped and threatened with being shot.

The girl identified defendant as one of the two who pulled her from the car, one of the first to attempt intercourse, and as holding her down 'by the hair of the head' to aid Fox in his attempts. She testified that each assailant attempted intercourse at least three times and that each, including defendant, succeeded.

Her testimony as to the assault and the participants was corroborated by Christiansen.

At some time during the two hours defendant intervened in behalf of the victim and tried to make Fox and Sexauer desist from further abuse. For his efforts he too was beaten and threatened. In fright he took off across the pasture. He later returned as the parties were leaving the scene.

When finally released Christiansen and the girl drove back to the city. The girl put on her clothes during the drive back. They went first to the radio station where Christiansen was employed and immediately called the police. The police came and took them to the police station. The girl was disheveled and hysterical. She was examined and questioned briefy and taken to the hospital. There she was examined and treated.

Intercourse was confirmed. Multiple bruises, scratch marks, lesions and recent trauma noted by the doctor. She told the doctor what happened.

Before going from the police station to the hospital the police called Mrs. Ashford with whom the girl lived. Mrs. Ashford testified:

'I received a call from her or in her behalf on the early morning of May 21. First I received a call from the police station and said that she wanted to talk to me, then I talked to her. She told me why.

'Q. What did she say? (Mr. Crawford: Objected to as hearsay. The Court: Overruled.) A. She said that she had been raped by three men and I said, 'Oh, no.' And she said, 'Yes, but I couldn't help it. They held guns on me.' Then she broke down and sobbed and cried. I told her I would be right down. I went to the police station. When I got there they had taken her to the hospital. I went to the hospital, * * *.'

Christiansen and the girl told the police and testified before the grand jury that they were parked on the highway and that the girl was clothed when they were first accosted. At the trial they said they did this to avoid embarrassment but told the truth at the time of trial.

From descriptions given the police Fox, Sexauer and defendant were arrested at the Fox home within a few hours. Sexauer was asleep on the floor still wearing his gun. Fox was upstairs in bed. A few hours later, acting with a search warrant, the sheriff found a twenty-two pistol under the pillow where Fox had been sleeping. Defendant was found in another bedroom.

The three men were taken to jail where each was positively identified as one of the assailants by Christiansen and the girl.

Statements were taken from defendant while in jail and later offered in evidence. Defendant does not claim that the statements were involuntary. From the witness stand he testified:

'I feel the statements are true as to what they state. I do feel that they're areas where things have been left out.' * * *

In his own behalf defendant called twelve character witnesses who testified as to his good character.

He also called a clinical psychologist who had examined defendant. This witness found defendant to have an intelligence quotient of 107 and 'ended up with a diagnosis from these tests of a passive, aggressive personality, passive, dependent type. * * * He is normal in the sense he is not psychotic, he is not out of contact with reality at all. * * *'

Defendant testified in his own behalf.

I. Defendant claims error in the giving of Instruction #19. This instruction was as follows:

'It is the law of this state that all persons concerned or engaged in the commission of a crime, whether they directly commit the act constituting the offense or knowingly aid, assist or encourage the same, are deemed to be principals in any crime so committed and are to be convicted as such.

'In other words, in order for a person to be guilty of the commission of a crime, it is not necessary that he commit the crime alone and unassisted.

'In this case, if you find from the evidence beyond a reasonable doubt that the State has proven that the defendant knowingly aided, assisted or encouraged one or more other persons to commit the crime charged in the indictment, in the manner and form and at the time and place therein charged, then you should return a verdict of guilty as against the defendant.

'If, however, on a full consideration of the whole case and in the light of the law as given you in all of these instructions, when considered and construed together, you have a reasonable doubt as to the guilt of the defendant, you must acquit the defendant of the crime charged.'

Defendant claims that this instruction fails to set forth his theory of the case that he desisted and withdrew before the crime was committed by anyone.

It is not now claimed that the instruction as given was an incorrect statement of the law as a general proposition. In the trial court defendant excepted to the instruction as not a correct statement of the law and not defining the crime charged or the quantity of proof necessary to convict and going beyond the requirements of the statute. (Section 688.1, Code of Iowa, I.C.A. abrogates the distinction between an accessory before the fact and a principal.) It is now claimed that the instruction is not complete nor correct as 'applicable to the facts of this case.'

The record does not disclose that in the trial court there were any exceptions to the instruction except as we have noted. There was no request for amplification nor for an additional instruction on the theory of defendant's withdrawal.

We find no error in this instruction. It is in accord with the statute.

The first case cited by defendant in his brief, State v. Baker, 246 Iowa 215, 66 N.W.2d 303, says: of this court that where an instruction is correct as given, though not as explicit as correct as given, though not as explicit as a party may desire, error cannot be based thereon, in the absence of a request for additional instruction.' loc. cit. 231, 66 N.W.2d loc. cit. 312.

There was a good reason for defendant's failure to seek and the court's failure to instruct on withdrawal. The defense was not based on that theory. The question of withdrawal was not in the case.

Defendant denied any voluntary participation at any time. He denied assisting Fox and Sexauer in any way. He denied intercourse. He denied any contact with the girl except at the point of a gun. Under defendant's own testimony there was no theory of withdrawal because he could not withdraw from an activity he was never in. Defendant denied any common enterprise with Fox and Sexauer from which he could withdraw. Ther was no need for an instruction an withdrawal.

The defense was based on nonparticipation and an attempt to help the victims. That is not the same as the theory of withdrawal now argued.

In Welton v. State, 171 Neb. 643, 107 N.W.2d 394, the Supreme Court of Nebraska said:

'The defendant's plea was not guilty. His testimony amounted to a denial that the offense occurred. He presented no evidence of an affirmative or other special defense. The assignment of error in reference to a failure of the trial court to instruct the jury as to the defendant's theory of the case is without merit.' loc. cit. 396.

II. The incident took place while the victims of the assault were parked in a private lane off the public highway. At the time the girl was disrobed. These facts were voluntarily disclosed by Christiansen and the girl in their direct examination. The accuracy of these disclosures is not challenged. Initially they told the police and testified before the grand jury that they were parked on the highway and that the girl was clothed.

In the trial court defendant asked the court to give the stock instruction on impeachment, No. 1.10, Iowa State Bar Association Uniform Instructions, and now alleges error for failure to so instruct. Defendant argues that an instruction based on the maxim 'falsus in uno, falsus in omnibus' should have been given.

The variation in the testimony of the state's witnesses at the trial from the testimony ...