State v. Watson

• Decision Date: 25 October 1890
• Parties: STATE v. WATSON.
• Court: Iowa Supreme Court

81 Iowa 380

46 N.W. 868

STATE

v.WATSON.

Supreme Court of Iowa.

Oct. 25, 1890.

Appeal from district court, Dallas county; A. W. WILKINSON, Judge.

Indictment for rape. Verdict of guilty, and from a judgment committing the defendant to the penitentiary for a period of five years he appeals.White & Clark, for appellant.

D. W. Woodin, Co. Atty., and John Y. Stone, Atty. Gen., for the State.

GRANGER, J.

The alleged rape was upon one Elsie Young, a step-daughter of the defendant, then about eleven years of age. Her statement of the tragical affair is that on the day following Easter Sunday, 1889, her mother had gone to Van Meter, and she went to the seed-house for molasses for the table, and the defendant came in and lay her on some sacks and had intercourse with her; that she called for her younger sister, who came, and the defendant sent her back, and renewed his assault upon Elsie; that this act was repeated in the same place on the next day, and again some two or three days thereafter, at the barn; that defendant told her not to tell her mother, and that if she did he would give her a horse-whipping; that she first told her grandmother of the affair some two weeks after it occurred.

1. At the trial of the indictment Elsie Young was a witness, and complaint is made that certain questions to her were leading. Two or three questions will suffice for our ruling upon this point. The witness had stated in a general way what had occurred, and the county attorney, with a view to particulars, said to the witness: “You may state to the jury whether or not there was any blood on your drawers. You may state to the jury whether or not he did hurt you. While you were on the bags, you can tell the jury whether or not George was right over you.” These questions were answered in the affirmative. The first and last questions might, in general, be regarded as technically faulty, because in the first the witness might have been left to name what was on her clothing, and in the last to define in her own words the position of George. The second question was entirely proper. It is difficult to see how it could well be framed otherwise. As applied to this case, there could be no just complaint as to any of the questions. The witness was of tender years; was before the court and jury; and the subject was of exceeding delicacy to her. The discretion of the court was properly exercised. It is not the law that, merely because questions may be answered by yes or no, they are leading. Woolheater v. Risley, 38 Iowa, 486. But the rule of that case is not to be accepted with too much liberality, and lead to the framing of questions that merely leave the witness to reflect the language of the questioner by an affirmative or negative answer. Statements of fact, as a general rule, should be in the language of the witness. There are liberal exceptions to the rule to be applied by the trial court. 1 Greenl. Ev. §§ 434, 435. 2. Complaint is made that the court permitted Mabel Young, grandmother to Elsie Young, to state in evidence the particulars of her complaints, but in this respect there is a misapprehension of the record. Under the holding in State v. Mitchell, 68 Iowa, 116, 26 N. W. Rep. 44, the witness had the right to state that Elsie told her what the defendant did,--as that he ravished or had intercourse with her; and more than that the court would not permit in this case. The witness, after the court had told her only to state if Elsie told her that defendant “abused her, or made an assault on her,” said: “Yes; she told me. She told me the whole circumstance.” It is likely the last clause that appellant complains of, but the circumstances were not related by the witness, and the statement is without prejudice; and, besides, the court had by no ruling admitted it, and the defendant took no steps to purge the record of it, as he should have done. The court also, in its instructions, guarded the jury against the consideration of any statements as to particular facts made by Elsie to the witness. An inferential criticism is made as to the remarks of the court in this connection, but the argument designates no particular statement, and we discover nothing erroneous.

3. During the introduction of the plaintiff's rebutting evidence Drs. Calvin and Caldwell were introduced and gave evidence of having made a personal examination of Elsie Young, and of the condition in which they found her, and appellant's complaint in this respect is that the testimony was not rebutting, and the requirements of the statute had not been observed to render them competent witnesses to prove the indictment. A closely controverted point in the case was as to the actual penetration of the person of Elsie Young. Her testimony was explicit that there was such penetration. The defendant afterwards used as a witness one Dr. Page, who had examined her, who swore that he found her private parts extremely sore and sensitive to the touch, and that the hymen was intact, without rupture. He also gave testimony, based on his examination, as to the probable length of time since the injury, it being a theory of the defense that the prosecution was the result of a conspiracy led by Mabel Young, and that the injury was a part of the plan, and of a more recent date than the alleged assault by defendant. The testimony of Drs. Calvin and Caldwell was upon the same subject as that of Dr. Page, both as to the condition of the hymen and of the probable length of time between the injury and the examinations, and the testimony was to quite an extent contradictory, one of them saying: “I found the hymen torn through; the edges red, inflamed; parts of it healed, other parts granulating, or healing, and excessively tender to the touch.” Appellant's argument goes more to the value of the testimony to show particular facts than to the question of its admissibility. The testimony was rebutting. Authorities are not very accurate as to the dividing line between what is rebutting evidence and what is not. The question has received some consideration, as applied to criminal cases, by Mr. Justice WRIGHT, in State v. Parish, 22 Iowa, 284, and the holding or reasoning there is not against the action of the district court in this case.

4. The county attorney, for the purpose of getting from Dr. Caldwell his opinion as to the length of time the injury was inflicted before the examination, grouped certain facts, and based his question thereon, and appellant claims the facts had no foundation, or at least not sufficient foundation, in the evidence; but we think otherwise. The question seems to have full support in the record when fairly considered. And we also think the objection to Dr. Caldwell's testimony as to the condition of the girl, because the examination was some four weeks after the alleged occurrence, is not well taken. The value of the testimony was for the jury. State v. McLaughlin, 44 Iowa, 82;State v. Teipner, (Minn.) 32 N. W. Rep. 678;Pless v. State, (Tex.) 3 S. W. Rep. 576.

5. There is a complaint that the court did not instruct the jury on the “defendant's theory of the case,”--that there was a conspiracy to prosecute him. Our examination of the record discloses no evidence on which to base such an instruction. Appellant refers to some items of evidence showing the conduct of certain parties, and in some instances misconduct, but, without the claim being made, a reader of the evidence would not think of a conspiracy. There is no evidence tending to show such a fact. While appellant asks instructions on other branches of the evidence, there is none on the question of a conspiracy, which fact tends to strengthen our position.

6. The physicians in their testimony gave opinions based on hypothetical questions, and the court, in its sixth instruction, said to the jury that, to render such opinions of any value, all the material facts embraced in the question must have been established by the proofs, and the complaint as to the instruction is that it does not determine for the jury what facts were material, but leaves the jury to determine that question. No question is made but that the instruction states a correct abstract proposition of law, and one having support in the record. If the defendant desired that an instruction should be given more specific as to the facts of the case, he should have asked for it. There is no such defect in the instructions as to indicate prejudice, or that defendant had not a fair trial. State v. Tweedy, 11 Iowa, 350; Same v. Helvin, 65 Iowa, 289, 21 N. W. Rep. 645. The same holding and authorities apply to appellant's complaint of the seventh instruction.

7. The ninth instruction is as follows: “The charge of rape against a person is easy to make, difficult to prove, and more difficult to disprove, and in considering a case of this kind it is the duty of the jury to carefully and deliberately consider, compare, and weigh all the testimony, facts, and circumstances bearing on the acts complained of, and the utmost care, intelligence, and freedom from bias should be exercised by the jury in the consideration thereof. The time and place of the alleged acts; relation of the defendant to the said Elsie Young, upon whom the assault is alleged to have been made; her age and intelligence, strength and physical development; his influence and power over her, if any; her condition thereafter, together with the condition of her clothes; evidence of injuries, if any, upon her person; appearance of the same when examined; the time since said injuries appeared to have been made; the length of time after the alleged transaction before complaint was made by her; the place where said acts are alleged to have been...