State v. White

• Citation: 217 N.W. 871,205 Iowa 373
• Decision Date: 14 February 1928
• Docket Number: 38783
• Parties: STATE OF IOWA, Appellee, v. ROLLIE WHITE, Appellant
• Court: United States State Supreme Court of Iowa

217 N.W. 871

205 Iowa 373

STATE OF IOWA, Appellee, v. ROLLIE WHITE, Appellant

No. 38783

Supreme Court of Iowa, Des Moines

February 14, 1928

Appeal from Jasper District Court.--CHARLES A. DEWEY, Judge.

From a judgment of conviction for the crime of rape the defendant appeals.

Affirmed.

M. R Hammer, Jr., and Walter F. Maley, for appellant.

John Fletcher, Attorney-general, and George E. Campbell, County Attorney, for appellee.

WAGNER J. STEVENS, C. J., and EVANS, DE GRAFF, MORLING, and KINDIG JJ., concur.

OPINION

WAGNER, J.

The indictment charges the crime to have occurred on or about the 20th day of March, 1926. The prosecuting witness and the defendant are first cousins. The prosecutrix was 16 years of age on June 20, 1926, and the defendant was past 42 years of age. The defendant is a married man, and has four children, ranging from 21 to 3 or 4 years of age. The family of the prosecutrix consisted of her father and mother, herself, and other children. During the period of the acts of sexual intercourse testified to by the prosecutrix, the defendant was engaged in work at a coal mine about a half mile distant from the home of the prosecutrix. She testified that the first act of sexual intercourse between them occurred along about March 20, 1926, in the barn on her father's farm, and that the act was thereafter repeated at numerous times and various places until the month of October, 1926. The testimony shows that the father and mother of the prosecutrix usually went to town to do their trading on Saturday; that during their absence the defendant would visit the home, when and where the illicit acts occurred. On February 19, 1927, the prosecutrix gave birth to a baby boy, which it is claimed was the result of their indulgence. The prosecutrix testified that she did not have intercourse with any other man since March 20, 1926. The father of the prosecutrix testified that, on December 12, 1926, the defendant visited him at his home, and in the conversation between them, the defendant said he came over to see if he could not compromise this case, and:

"I said to him, 'I consider that you have committed one as dirty and low-down crimes as a white man could be guilty of.' I said: 'You have a family of your own,--one girl married,--and you got around this past-fifteen-year-old girl of mine, and got the upper hand of her, and got her pregnant, and throwed on my hands, and for trouble to her, too.' He said he was sorry of it. I said: 'You are sorry too late. Furthermore, you had this girl to run off from home, got her across the Des Moines River, and got her in a car and took her to Tom's. You took her there to dope her,--anything to get shut of this thing. That is what you did.' He said, 'I'll tell you what, I thought the best thing we could do was to take her up to Tom's and have this all straightened away. Nobody would know nothing about it, and it would save me going to the pen.'"

The evidence in the case is very revolting, and we deem it unnecessary to more fully particularize in setting it out, except as it may become necessary in considering the alleged errors assigned by the defendant.

At the close of the State's evidence, on motion of the defendant, the court required the State to elect on which transaction or act of intercourse it relied for conviction; and the State elected to rely upon the act claimed to have occurred in the barn on or about the 20th day of March, 1926.

The defendant assigns as error the receiving of secondary evidence of the contents of two letters written by the defendant to the prosecutrix. He relies upon State v. McGinn, 109 Iowa 641, 80 N.W. 1068, and State v. Loftus, 128 Iowa 529, 104 N.W. 906. In the first of the aforesaid cases, the receipt of the secondary evidence was held improper because there was no showing that the letter was written by the defendant. In the latter case, the letters or billets, and the contents of another, were held inadmissible for the reason that the record failed to connect them with the defendant.

The record establishes the fact that, between the 16th and 23d days of May, 1926, the prosecutrix visited at the home of Mr. and Mrs. Ed Waters, in the city of Des Moines, and while she was there, the defendant wrote and gave to Cleo Waters, the 12-year-old sister of the prosecutrix, a letter, with instructions to mail it to the prosecutrix, and that she put it in an envelope, with a letter written by herself, and mailed it to the prosecutrix, at the home of Ed Waters. This letter was received at the Ed Waters home, together with the one written by Cleo. It is shown by the record that the defendant asked the prosecutrix whether she had received the letter written by him while she was on said visit. Said letter was destroyed. It is also shown by the record that, during the latter part of August, 1926, the prosecutrix was visiting relatives at Commerce, Iowa, and after she had gone there, the defendant wrote and mailed her a letter, which was there received and forwarded to her. The prosecutrix testified that the defendant told her that he wrote her a letter, and asked her if she had received it, and further, that she was acquainted with, and that the letter was in, the handwriting of the defendant. It is further shown by the record that said letter had been burned. The defendant's connection with the writing and mailing of said letters to the prosecutrix is thus clearly shown, and the two cases hereinbefore mentioned, relied upon by the defendant, are clearly distinguishable from the facts in the instant case. It having been shown by the record that the letters had been destroyed, the proper foundation was laid for the introduction of the secondary evidence as to their contents. Therefore, the contention of the defendant as to the inadmissibility of this secondary evidence as to the contents of the letters is devoid of merit.

An affidavit by one of the jurors, filed with defendant's motion for a new trial, recites certain facts which it is claimed show prejudicial misconduct of one of the jurors. The affidavit is made by the juror, who states therein that he was the last one of the jury to vote for conviction, and that, in a discussion as to whether or not the 20th day of March, 1926, was on Saturday, Mrs. Hummel, one of the jurors said that she knew that said date was on Saturday, as she had looked it up on the calendar. The affiant further swore that, but for the statement of Mrs. Hummel, he would not have voted for conviction. This latter statement cannot be considered, as it inheres in the verdict. It is not competent to show by affidavit of the jurors what influenced the verdict, for this necessarily is mere matter of opinion, and essentially inheres in the verdict itself. State v. Kirk, 168 Iowa 244, 150 N.W. 91; State v. Dudley, 147 Iowa 645, 126 N.W. 812; State v. Gilliland, 187 Iowa 794, 174 N.W. 496. We have held in some cases that statements of fact by a juror during deliberation bearing on a material issue in the cause, and made of the juror's personal...