State v. Wolf
| Citation | 92 N.W. 673,118 Iowa 564 |
| Parties | STATE OF IOWA v. ORRIS WOLF, Appellant |
| Decision Date | 19 December 1902 |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--HON. W. G. CLEMENTS, Judge.
DEFENDANT was indicted with others for assaulting and ravishing a female over the age of consent. They were tried jointly, and a conviction was reversed in this court. See 112 Iowa 458. This defendant alone was then tried, and convicted of assault with intent to commit rape, and from sentence therefor he now appeals.
Reversed.
W. R Lewis for appellant.
Chas W. Mullan Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.
The second trial was had on the same evidence as that which was introduced on the first trial, and appellant asks that the abstract of the evidence presented on the first appeal be considered as an abstract thereof for this appeal. We know of no statute or rule authorizing us to thus refer to the record on the former appeal for the purpose of determining the questions on the second appeal in the same case, even though it may be clear that the evidence introduced on the second trial was the identical evidence used on the first trial. As at present advised, we are not willing to adopt any such rule of procedure. What purports to be the abstract on the present appeal does, however, contain a brief synopsis of what it is claimed the evidence on the trial tended to prove and the instructions given, and we think that there is a sufficient record to enable us to pass upon the assignments of error as to the instructions, which are the only assignments presented.
The assignments raise only one question, and that is as to the correctness of an instruction with reference to the consideration to be given by the jury to the fact that the female upon whom the assault was committed made no complaint thereof until some considerable time after the occurrence. It appears from the record that she was a witness in behalf of the state to prove the commission of the crime, and, further, that after the alleged assault she returned to the place where she had been working, and continued there without complaint to any one as to the injury claimed to have been done her, and without reference thereto on her part, until, several days after the occurrence, she was interviewed in regard thereto by her mother, who had heard from others of the supposed outrage, and that in this interview prosecutrix said the defendants had done nothing bad to her, although in her testimony she denied having made any such statement. It is also stated in the record that prosecutrix failed to give any explanation in her testimony of her failure to make complaint of the alleged wrong.
It was therefore proper for the court to give an instruction to the effect that the jury might consider the failure of prosecutrix to make complaint as affecting the credibility of her testimony, and in connection therewith might consider any excuse, if any appeared, why such complaint was not made; for the failure to make complaint does not render the testimony of prosecutrix inadmissible, but is a circumstance for the jury to consider as affecting the credit to be given to it (State v. Snider, 119 Iowa 15, 91 N.W. 762); and, while the cases on the subject relate generally to the admissibility and weight of the evidence as to the complaint itself, yet the courts have recognized without question the doctrine that entire failure to make complaint is a circumstance which may be taken into account as an independent fact to affect the testimony of the prosecutrix as to the commission of the crime upon her (People v. Gage, 62 Mich. 271, (28 N.W. 835, 4 Am. St. Rep. 854); Oleson v. State, 11 Neb. 276 (9 N.W. 38, 38 Am. Rep. 366); Whitney v. State, 35 Ind. 503). The failure to make complaint as a fact is not to be shown as bearing directly on the question of defendant's guilt or innocence, but only as affecting the credibility of the testimony of prosecutrix; and, if the injured female does not testify by reason of death, imbecility, or some other cause, the fact of complaint or want of complaint cannot be shown. State v. Wheeler, 116 Iowa 212, 89 N.W. 978; Hornbeck v. State, 35 Ohio St. 277 (35 Am. Rep. 608); State v. Meyers, 46 Neb. 152 (64 N.W. 697, 37 L.R.A. 423); Weldon v. State, 32 Ind. 81; Johnson v. State, 17 Ohio 593.
The defendant asked instructions as to the consideration to be given by the jury to the failure of the prosecutrix to make complaint, and the court gave the following, which was the only instruction on the...
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