State v. West

• Decision Date: 16 January 1923
• Docket Number: No. 34764.,34764.
• Citation: 191 N.W. 368
• Parties: STATE v. WEST.
• Court: Iowa Supreme Court

191 N.W. 368

STATE

v.WEST.

No. 34764.

Supreme Court of Iowa.

Jan. 16, 1923.

Appeal from District Court, Cedar County; John T. Moffit, Judge.

Defendant was indicted for the crime of rape. The jury found him guilty of assault with intent to commit rape, and judgment was pronounced thereon. The defendant appeals. Affirmed.

De Graff, Weaver, and Faville, JJ., dissenting.

L. E. Casterline, of Tipton, for appellant.

Ben J. Gibson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and Arthur Lund, Co. Atty., and C. O. Boling, both of Tipton, for the State.

PRESTON, C. J.

The indictment was under chapter 192, Acts of the Thirty-Ninth General Assembly, which reads:

“If any person ravish and carnally know any female of the age of sixteen (16) years or over, by force or against her will, or if any person under the age of twenty-five (25) years carnally know and abuse any female child under the age of sixteen (16) years, or if any person over the age of twenty-five (25) years carnally know and abuse any female under the age of seventeen (17) years, he shall be imprisoned in the penitentiary for life or any term of years.”

The indictment is under the last subdivision. It charges, in substance, that defendant is over 25 years of age, and that he did carnally know and abuse Ellen Ghrist, a female under the age of 17 years.

Three grounds are relied upon for reversal: First, that the statute is unconstitutional; second, that there is no competent evidenceto prove that defendant is over 25 years of age, for that such fact may not be shown by opinion evidence; and third, that the testimony of prosecutrix is unsupported by any corroborative testimony, as required by section 5488 of the Code.

[1] 1. The question as to the alleged unconstitutionality of the statute is raised for the first time in this court. The rule is that, unless it is properly raised in the district court, it may not be considered on appeal. State ex rel. Anti Saloon League v. Ross, 186 Iowa, 802, 173 N. W. 66.

[2][3] 2. Doubtless the purpose of the new statute is a degree of protection of young boys and young men under some circumstances. While this purpose is proper enough, in actual practice it is likely to prevent a conviction in some cases, as where the person charged is near the age of 25 years, because of the difficulty, under such circumstances, of proving his age. Under this indictment it is necessary for the state to prove the age of the defendant as well as the prosecutrix. Ordinarily there is no difficulty in proving her age. It may be quite difficult sometimes to prove the age of a defendant. He cannot be compelled to testify thereto. In the instant case defendant was a stranger in the community, and his residence and parentage were unknown. The record of his birth was not accessible, and there is no evidence of any admission by him as to his age. As said, if a person is close to the age of 25, a little under or a little over, it might be difficult to prove. There are cases holding that where the age of an infant is in issue, it may not be shown by opinion evidence. Clearly, if a man was 75 years of age, that rule would not apply. Often age is provable by evidence which is, in a sense, hearsay. A party testifying to his own age is necessarily hearsay, and it may be proved by others of the family as family history or tradition. A qualified expert can testify that a house is an old house, and give his opinion as to its age. This is so as to many other things.

In this case the age of defendant was sought to be shown by the opinions of three witnesses, experienced in such matters. They give their opinion that he is about 30 or 35 years of age or more. They state the facts upon which they base their opinions. Dr. Hoffman, engaged in the general practice of medicine for many years, enumerates the facts upon which he bases his opinion, some of which are that defendant has lost the ruddy complexion of youth; his skin is thick and a little massive; his hair is getting thin on the top and about the temples; he has wrinkles on the forehead and on either side of the eye, and on the side of the nose and about the neck; his upper lip is thickened as if he might have worn a moustache, and his eyes are sunken; his general appearance is that he is a man past the age of 30. Witness says he has no doubt about it; thinks he is between 30 and 35 years of age. Dr. Jenks gives his experience and observations, and gives his opinion that, between the wide extremes, defendant is between 30 and 40 years; has no doubt but that he is at least 30 years of age. He gives the facts upon which he bases his opinion; was in the service, in hospital work, and during all that time, and in his practice generally, has had occasion to observe people as to their ages; does not recollect of having seen in his practice, persons that have the line from the nose and mouth who were not 25. Dr. Van Meter, engaged in general practice since 1887, says he always observes the age of a person in making diagnosis. He states the facts upon which he bases his opinion: His observation, defendant's general appearance as compared with other men and ages.

Without discussing in detail the different cases on this subject, we think the evidence is competent. See 22 Corpus Juris, 560; State v. Bernstein, 99 Iowa, 5-10, 68 N. W. 442;Commonwealth v. O'Brien, 134 Mass. 198;DeWitt v. Barly, 17 N. Y. 340;State v. Grubb, 55 Kan. 678, 41 Pac. 951;Louisville Railway v. Frawley, 110 Ind. 18, 9 N. E. 594;Monahan v. Roderick, 183 Iowa, 1, 166 N. W. 725;Reininghause v. Merchants' Insurance Association, 116 Iowa, 364, 89 N. W. 1113; Jones on Evidence (Pocket Ed.) § 401, notes 42 to 45, and cases therein cited; Id., § 300, note 21; 41 L. R. A. 451 (family Bible entries as evidence of age); Priddy v. Boice, 201 Mo. 309, 99 S. W. 1055, 9 L. R. A. (N. S.) 718, 723, 119 Am. St. Rep. 762, 9 Ann. Cas. 874 (census returns); 17 Cyc. 98; 16 Cyc. 1123.

3. It is argued that there is no corroboration of the prosecutrix, as required by the statute. It appears from the evidence that the defendant was operating a show at a fair near Tipton, from August 31 to September 2, 1921, inclusive, and at the same time and place another show, or doll rack, was being conducted by the Bassett Bros. Defendant slept in the Bassett tent, arranging his bed on the ground. Prosecutrix, voluntarily, for aught that appears, stayed and slept in the same tent during the time in question, slept on cots between the two Bassett's, on Wednesday night. Prosecutrix was over 16 and under 17 years of age. She testifies that the intercourse was had with her by the defendant Thursday night, September 1, 1921, in the night at about 1 o'clock; that it occurred in the tent owned by Bassett Bros., and at the fair grounds; that she saw defendant on the fair grounds August 31, at different times on that date; she got to the fair grounds about noon; saw defendant in his own place there in the afternoon; saw him in the tent at Bassett Bros. at different times; he stayed there all night in the tent Wednesday night and Thursday night; she stayed there all night. She says further that on the date in question she was working at Fitzpatricks, and when not working there she was at home with her father and mother, who lived about two miles south of Tipton, and Fitzpatrick lived about a half a mile from Tipton; was working for Fitzpatrick on August 31, and on that date went to the Tipton fair grounds and attended the fair; that defendant had been drinking that day; smelled it on his breath; whisky had been brought into the tent; that defendant woke her up by getting on top of her, etc., and that when he did that she tried to get away; that he held her and told her he would not hurt her; it did hurt; told him to quit, and he said he was not going to; left the fair grounds about 2 o'clock Friday; do not know the time exactly; made the complaint to Sheriff Barclay Friday evening. As to the time she made complaint to the sheriff her testimony differs somewhat from that of the sheriff, who says she made the complaint that afternoon about 2 o'clock, and told him that defendant had sexual intercourse with her. About 5 o'clock Friday afternoon Dr. Jenks made an examination of her sexual organs. He testified that he found some laceration of the hymen, etc.

The defendant did not testify, and only two witnesses were introduced in his behalf. Argo testifies:

That on September 1, 1921, Thursday morning, I brought Louie Bassett and Ellen Ghrist to Tipton, and at that time she made this statement to me, in substance, “Louie Bassett is my husband.”

Doubtless this was in jest, or to shield herself or lover.

The other witness for defendant was Louis Bassett, who testified:

That he was at the Tipton fair which was held on the last two days of August and the first two days of September; had a doll rack concession at the Tipton fair; had the dolls in a tent; the tent is 16x10, the long way east and west. West wanted me to make a date for him with Ellen Ghrist; he asked me to fix it up. I asked her about a date for him; did not specify any certain kind of a date; saw Ellen and West together in the east end of the tent on Wednesday night. West told me he wanted me to fix it up for him with the girl. There were two cots in the Bassett tent on Wednesday night, August 31. Ellen Ghrist slept all night on the two cots in our tent, with my brother and myself. West slept in the opposite end of the tent on the ground that night. On Thursday night our cots were in the same position as they were on Wednesday night, and West's bed was in the same place. He went to bed there Thursday night between 12 and 1 o'clock. I was in the tent all of Thursday night after midnight, until morning. Ellen again slept on the cots with my brother and I all of Thursday night after midnight, and I was in position with respect to her so that, if any commotion which involved her had occurred, it is probable that I would...