State v. Wheeler

• Decision Date: 09 April 1902
• Citation: 89 N.W. 978,116 Iowa 212
• Parties: STATE v. WHEELER.
• Court: Iowa Supreme Court

116 Iowa 212

89 N.W. 978

STATE

v.WHEELER.

Supreme Court of Iowa.

April 9, 1902.

Appeal from district court, Boone county; J. R. Whitaker, Judge.

The defendant was accused of the crime of rape, and convicted of an assault with intent to commit rape, upon one Mathilde H. Shaublin. He appeals. Reversed.Whitaker & Dale, for appellant.

Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

LADD, C. J.

The prosecutrix, at the time of trial, was nearly 14 years old; the defendant past 68, and had been married 49 years. She had been stopping temporarily at his home for about five weeks, and left early Friday morning before Christmas, 1900. She testified that defendant had attempted to have sexual intercourse with her that morning and several times previous. The bed in which she slept was in the same room as that occupied by defendant and his wife, and, according to her story, these attempts were made, not only when the wife was in the room and in the neighboring bed, but with her connivance and encouragement. All this was denied by defendant and his wife, but their credibility, as well as that of prosecutrix, was solely for the jury to pass upon. Her testimony alone could have been accepted as establishing the corpus delicti. State v. McLaughlin, 44 Iowa, 82. But was it “corroborated by other evidence tending to connect the defendant with the commission of the offense”? Section 5488, Code. Mere opportunity was not enough. State v. Chapman, 88 Iowa, 254, 55 N. W. 489. Nor was the fact of her genital organs being bruised and the making of complaint. State v. Stowell, 60 Iowa, 538, 15 N. W. 417. Evidently the existence of marks and bruises on the person do not alone even tend to point out the person who caused them; and, while evidence of complaint by the prosecutrix, if recently made, has uniformly been received, it has never been regarded, unless forming part of the res gestæ, as original or independent evidence. State v. Emeigh, 18 Iowa, 122;State v. Mitchell, 68 Iowa, 116, 26 N. W. 44;Lawson v. State, 17 Tex. App. 292;Johnson v. State, 17 Ohio, 593; State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90; Griffin v. State, 76 Ala. 29; Thompson v. State, 38 Ind. 39. Failure to complain, or delay in the prosecution because of the nature of the accusation, is looked upon as a suspicious circumstance; and, to repel the inference that the story may have been a mere fabrication, which otherwise might be drawn, such evidence is admitted as tending to confirm or corroborate the statement of the injured party. State v. Cook, 92 Iowa, 483, 61 N. W. 185. As said in 2 Starkie, Ev. p. 699: “It is a test applicable to the accuracy as well as the veracity of the witness.” “Such evidence is received to show constancy in the declaration of the witness. If a female testifies that such an outrage has been committed upon her person, an inquiry is at once suggested why it was not communicated to her female friends. To satisfy this inquiry, it is reasonable that testimony shall be received to confirm her story.” State v. De Wolf, supra. However much the authorities may be in conflict as to the extent particulars of the complaint may be detailed, all seem to agree that the effect of such testimony is limited to testing the accuracy and veracity of the witness. Thus Baron Parke, in Reg. v. Guttridge, 9 Carr. & P. 471, where the prosecutrix was called, but did not appear, to the proposal to make proof of the complaint, said, “I think the safest course to reject the evidence, as it is not part of the res gestæ, but merely confirmatory evidence.” And in Phillips v. State, 9 Humph. 246, 49 Am. Dec. 709, the court declared that: “It is certainly true that proof of the particulars of the complaint made by the injured party cannot be admitted as original evidence to prove the truth of the statements, or to establish the charge made against the prisoner, because not made in his presence, and likewise because the ordinary tests which the law has provided for the ascertainment of truth are wanting, viz., the sanction of a judicial oath and the opportunity for cross-examination. And if this be the proper meaning and extent of the rules as laid down in the last authorities referred to, it is unquestionably correct. Such evidence is only admissible in confirmation of the witness, or to repel the presumption that her statement is a fabrication.” And, generally, if for any reason--as incompetency, immature age, or death--the injured female is...