State v. Vochoski

• Decision Date: 19 December 1914
• Docket Number: 29589
• Citation: 150 N.W. 53,170 Iowa 246
• Parties: STATE OF IOWA, Appellee, v. OTTO VOCHOSKI et al., Appellants
• Court: Iowa Supreme Court

150 N.W. 53

170 Iowa 246

STATE OF IOWA, Appellee, v. OTTO VOCHOSKI et al., Appellants

No. 29589

Supreme Court of Iowa, Des Moines

December 19, 1914

REHEARING DENIED TUESDAY, MAY 11, 1915.

Appeal from Jones District Court.--HON. F. O. ELLISON, Judge.

PROSECUTION for rape. There was a verdict of guilty of assault with intent to commit rape against both defendants. Judgment was entered accordingly and sentence imposed. Both defendants appeal.

Affirmed.

Jamison Smyth & Hann and Clifford Paul, for appellants.

George Cosson, Attorney General, and George C. Gorman, County Attorney, for appellee.

EVANS J. LADD, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.

Eliza Leslie, the prosecuting witness, testified in part as follows:

"I live at Oxford Mills. I have lived there about three years. Before coming to Oxford Mills I lived five miles west. Lived on a farm with my folks. I was raised on a farm. I am sixteen years old. Am acquainted with Leon Carroll and Otto Vochoski. Have known Carroll ten years and Vochoski five. September 8, 1912, I was at Benhart's. Benharts live about four miles west of Oxford Mills. I had been there about three weeks. Had been working for Benharts off and on for three years. I didn't live at home with my father and mother. I lived at my brother's, Dick Leslie. When not working at Benharts I stayed with my brother."

Q. "Now, Miss Leslie, you may state whether or not you had a 'phone call from anyone on September 8th, Sunday. If so, state what there was to that."

A. "Mr. Carroll was the one that called me up. Mrs. Benhart answered the 'phone and he asked for me and I asked who it was, and he said Otto Vochoski, and I said 'Otto Vochoski,' I couldn't tell by the voice. He said 'You know who I am.' I thought it was Bert Jeffries. I didn't say anything in reply as to whether it was Jeffries or not. I am acquainted with Jeffries. We had the following conversation: He asked if I had company for that night, I told him no. He asked if he could come out. I said he could. It was about 7 o'clock. About a quarter to eight after that, Carroll came. He rapped at the door and the dog barked and he said 'Will the dog bite?' Mrs. Benhart said 'no,' so I went to the door. I said Mr. Jeffries called me up, and he said it was him that called me up, and he asked me to go buggy riding with him and I told him I would. Mr. and Mrs. Benhart were in the house at the time. We went to the buggy. I didn't put a hat on. He had a horse and buggy standing out in front of the house. We went through the entrance of the gate out to where the buggy was, got into the buggy and drove north about a half a mile. The road runs north and south past Benhart's place. Then turned around and came back past Benhart's house. No one came to the house with him at that time and no one went away with him. When we went past Benhart's house, we went on south. The road runs south and east of Benhart's house about a quarter of a mile. We passed an orchard going south and there is a field on the other side. As you go south on the road it is down hill. There is a cut in the hill, the road is dug out and there is a hedge fence along the side of the road, osage orange hedge. When we got down to the bottom of the hill, there is a bridge there. There is no house near it. I went over described road with Carroll. When we came down to the bottom, most a half mile, there is a kind of a valley there and a bridge there. When we came down to the bridge Vochoski came out, one of the defendants in this suit. He came and said 'I have got you.' Mr. Carroll jumped out of the buggy and said 'what are you doing here' and struck at him. They stopped the horse, they did not fight, they struck at one another and smiled. Vochoski stepped into the buggy with me. He commenced saying he was going to tell my folks I was with Leon Carroll. I said I didn't care, I was going to tell them myself."

Q. "What did he do?"

A. "He pushed me over and took me around the neck with his arms and commenced to tell me I would have to let him have intercourse with me. Then I begged Carroll not to let Vochoski do it, and he said he wouldn't do it."

Q. "What did Carroll do, if anything?"

A. "He pushed me over and held my hands. Vochoski held one and Leon the other while Leon unpinned the cloth I had on. They took the cloth off, unpinned it. I could not move my hands. I hollered and cried."

A. "They told me to shut up or they would shut me up. Vochoski took hold and raised my clothes and Leon Carroll unbuttoned my clothes. Vochoski got onto me in the buggy and he had intercourse with me and he penetrated my person."

Q. "After he had done this, did Carroll do anything to you?"

A. "He did the same as Vochoski."

Both defendants were witnesses on the trial. The telephone call and the ride pursuant thereto were conceded by Carroll. He denied, however, that he gave any other name than his own in the telephone call. He also denied the alleged assault. The presence of Vochoski was denied by both defendants.

At the close of the State's evidence, there was a motion by the defendant Vochoski for a directed verdict on the grounds that the evidence was insufficient to connect him with the alleged offense and because there was no corroborating evidence. This motion was not renewed at the close of all the evidence. However, the same contention is urged on this appeal. It is first urged for the defendant Vochoski that there was no corroborating evidence as to him.

There was evidence other than that of the prosecutrix which, if believed by the jury, would establish the following facts: That Carroll called on the prosecutrix with horse and buggy at about 7:45; that this was pursuant to the telephone call at about seven o'clock; that Vochoski was with Carroll at the time of the telephone call and heard what he said; that the telephone call purported to be in the name of Vochoski; that Vochoski and Carroll were riding together in Carroll's buggy shortly before Carroll started for the Benhart home; that Carroll left the prosecutrix at the Benhart home about 10:00 P. M.; that Vochoski and Carroll were together at the neighboring village four miles distant at 11:00 P. M. and that they rode home together in the same buggy; that prior to the assault and on the same afternoon or evening, Vochoski told witness Engle that he had a "date" for that evening with the prosecutrix; that after the event and after his arrest therefor, he made statements admitting his presence at the place of the alleged assault. That the foregoing was sufficient to go to the jury on the question of corroboration is too clear for discussion.

II. It is urged for both defendants that the testimony was insufficient to convict. The argument is that the story told by the prosecuting witness is too improbable, if not impossible, to be credible. The story is a revolting one. In a sense, a revolting crime is always incredible, especially to those who would be morally incapable of it themselves. In that sense only is the story of the prosecutrix necessarily incredible. Of course, it should be scrutinized with searching care and the jury was so instructed. But the revolting character of the crime must not be permitted of itself to operate as an impeachment of the story of the injured party. The story of the prosecutrix is full of consistent details which would not lend themselves readily to a complete fabrication. A few evenings prior to the night in question, Vochoski had taken the prosecutrix out buggy riding and had attempted indecent liberties with her, because of which she left his buggy. Carroll had not previously kept company with her and does not appear to have taken her out riding before. It being once found that Vochoski was at the place of the alleged assault by previous understanding with Carroll, such fact would naturally give rise to very unfavorable inferences quite consistent with the story of the prosecutrix.

III. The prosecutrix was sixteen years old and was a domestic in the Benhart family. The alleged offense was committed on Sunday evening. When she returned home, the family had retired. She did not, on the following day, make any complaint to the Benharts. She did appear to be in distress and was observed to be crying. On Tuesday, she went to the home of her brother, five miles distant, and made the complaint to her sister-in-law. In such complaint she accused the defendants of having ravished her. Such complaint was put in evidence. It is contended for the defendants that it was improperly received because of its delay and because it was merely hearsay and especially so as to the naming of the defendants therein. The complaint was...