State v. Trusty

• Decision Date: 12 January 1904
• Citation: State v. Trusty, 122 Iowa 82, 97 N.W. 989 (Iowa 1904)
• Parties: STATE OF IOWA, Appellee, v. MARION TRUSTY, Appellant
• Court: Iowa Supreme Court

97 N.W. 989

122 Iowa 82

STATE OF IOWA, Appellee, v. MARION TRUSTY, Appellant

Supreme Court of Iowa, Des Moines

January 12, 1904

Appeal from Winnebago District Court.--HON. JOHN F. CLYDE, Judge.

DEFENDANT was indicted for the crime of rape, committed, as is alleged upon his stepdaughter.He was convicted of the crime charged and sentenced to the penitentiary for the term of twenty years.This appeal is from the judgment pronounced against him.

Affirmed.

C. A Nelson and Tom H. Milner for appellant.

Chas. W. Mullan, Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

DEEMER, C. J.

This is the second time this case has been before us.The opinion on the first appeal will be found in 118 Iowa 498.The indictment is in two counts.The first charges a rape committed upon a child under the age of fifteen; and the second, a rape upon the same person, who, it is said, was naturally imbecile, and so weak of mind as not to understand the nature of the act.This was undoubtedly done to meet the evidence in the case, and, viewed in this light, it was not objectionable.

Prior to the impaneling of the trial jury, the defendant filed a motion to require the state to elect upon which count of the indictment it would proceed.The motion was overruled, and this is assigned as error.The ruling was correct.There are two separate sections of the Code relating to the offense of rape.Under the first the defendant was guilty if he carnally knew a female child under the age of fifteen years, and under the second he was guilty if he had carnal knowledge of one who was an idiot, or had such imbecility of mind as to prevent effectual resistance, no matter what her age; but in either case the crime is rape.Indeed, defendant might have been convicted under either count if the state showed that the prosecutrix was so weak of mind as to be incapable of giving consent.State v. Atherton, 50 Iowa 189.The indictment, therefore, was not bad for duplicity, and, as the charge in the two counts relates to the same transaction, there was no error in overruling defendant's motion.Grimes v. State, 105 Ala. 86(17 So. 184);Mills v. State, 52 Ind. 187;State v. Houx, 109 Mo. 654(19 S.W. 35, 32 Am. St. Rep. 686);Porath v. State, 90 Wis. 527(63 N.W. 1061, 48 Am. St. Rep. 954).See, also, State v. Enright, 90 Iowa 520, 58 N.W. 901;State v. McPherson, 9 Iowa 53;State v.Baldwin, 79 Iowa 714, 45 N.W. 297,--which lend support to these conclusions.

II.Complaint is made of some remarks made by the prosecuting attorney in his opening statement of the case to the jury.There is no showing of bad faith, and, as soon as counsel had an intimation from the court that the matter he was stating would not be admitted in evidence, he immediately desisted, and abstained from further mention of the matter.Some latitude must be given counsel in the opening statement of a case; and, so long as they act in good faith, believing that the evidence is admissible, we shall not interfere.State v. Allen, 100 Iowa 7, 69 N.W. 274, and cases cited.

III.One Burke, a witness who was not before the grand jury, was a witness for the state.Notice was given the defendant that his testimony would be adduced upon the trial, but it is claimed that defendant was not given notice of the particular matters to which the witness would testify.This is true only in part.The witness was examined as to the very matters of which defendant had been given notice, but it appears that they occurred at another time and place from that stated in the notice.This was not a valid objection to the evidence.State v. Harlan, 98 Iowa 458, 67 N.W. 381;State v. Craig, 78 Iowa 637, 43 N.W. 462;State v. Boomer, 103 Iowa 106, 72 N.W. 424.

IV.Frank Barker, a witness for the state, was permitted to testify, over defendant's objections, to a state of facts tending to show that, at a time prior to the commission of the crime charged in the indictment, defendant had had intercourse with the prosecutrix, and that he was offering her body for unlawful commerce.The testimony relating to this last matter seems, from the abstract, to have been brought out on cross-examination; and, of course, the defendant cannot complain thereof.The evidence as to defendant's having had connection with the girl before the time charged in the indictment was admissible under a well-known rule regarding testimony of other transactions than those charged.When the issue is as to criminal intimacy between persons of the opposite sex, evidence of prior acts of indecent familiarity are competent, as tending to show an antecedent probability.They have a tendency to show a breaking down of all safeguards of self-respect and modesty, and a general preparation for the offense.Gillett on Indirect & Collateral Evidence;Cross v. State, 138 Ind. 254(37 N.E. 790);Com. v. Bradford, 126 Mass. 42;State v. Borie, 79 Iowa 605, 44 N.W. 824;State v. Markins, 95 Ind. 464(48 Am. Rep. 733);Proper v. State, 85 Wis. 615(55 N.W. 1035).The Cross Case is directly in point.

V.Defendant, when on the witness stand, was asked as to what he had heard the girl's mother, grandfather, and uncle say about her age.Objection to the questions was sustained, and, as we think, properly.The mother was a witness in the case, and testified directly as to the girl's age.There was no showing that either the grandfather or uncle was dead, or could not be produced as a witness.As we understand the rule regarding declarations as to pedigree, which, no doubt, also includes age, it must be shown that the declarant is dead, before such evidence is admissible.People v. Mayne, 118 Cal. 516 (50 P. 654, 62 Am: Rep. 256);Mason v. Fuller, 45 Vt. 29;Greenleaf v. R. R.30 Iowa 301.

VI....