State v. Woodworth

• Decision Date: 19 December 1914
• Docket Number: 29910
• Citation: 150 N.W. 25,168 Iowa 263
• Parties: STATE OF IOWA, Appellee, v. MONTIVILLE WOODWORTH, Appellant
• Court: Iowa Supreme Court

150 N.W. 25

168 Iowa 263

STATE OF IOWA, Appellee, v. MONTIVILLE WOODWORTH, Appellant

No. 29910

Supreme Court of Iowa, Des Moines

December 19, 1914

Appeal from Jones District Court.--HON. F. O. ELLISON, Judge.

FROM a judgment of conviction for assault with intent to commit rape, the defendant appeals to this court.

Affirmed.

Clifford B. Paul, for appellant.

George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for appellee.

PRESTON J. LADD, C. J., EVANS and WEAVER, JJ., concur.

OPINION

PRESTON, J.

The prosecuting witness testified substantially as follows:

"I am fifteen years old; have a sister named Hazel, aged ten years; I went hazel-nutting November 22nd last; was thirty-five rods from Moyer's; there was thick hazel brush there. Shortly after I came there defendant came up behind me and took hold of my arm. I began to pull away and holler. He pulled me back in the brush further and made me sit down on the ground. I tried to get away and he would not let me; said he would not let me go; told me he was Ben Andrews. I never heard of him. Defendant was the man who was there.

"Said he wanted me to have intercourse with him. Asked him to let me alone. Said he did not have to. Said he would kill me, fix me so I couldn't go home. He took hold of my arm, tried to choke me. Every time I tried to get up he pushed me back on the ground. He pushed me down and made me lie down. He tore my dress. Asked me to have intercourse with him. Threw me down on the ground got on top of me, raised my dress unbuttoned my dress and clothing. Said if I did not keep still he would knock me over. I tried to get away from him. Said he was going to have intercourse with me. Told him my sister was coming. Let me alone for a while. Had a bottle with him. Said it was whiskey. Wanted me to drink. I would not, so he drank what was left himself. He turned his back and drew his water. I ran toward home and he ran after me and caught me. Made me lie down again. Unbuttoned his clothing and got on top of me. I tried to prevent him. Told him my sister was coming. My sister Hazel came. When she came I stood up and kept backing off and started toward home. We ran toward Moyer's. He ran after us nearly to the road. This dress (Exhibit A) was torn by him and he unbuttoned it. Defendant said if I would not tell how it happened he had a check for $ 50.00 and he would send half of it to my father. Said if I did tell he would kill me. Because of the threats he made I promised not to tell. Found Mrs Moyer at home and told her soon after I arrived. We then went home and I complained to my mother about the assault. Told my father about the assault. Told my father that afternoon. When I was in Anamosa next morning I met the man who assaulted me and he was the defendant, Mont Woodworth."

She is corroborated by her sister, who testified that as she came up to the place where defendant and prosecutrix were the defendant had his arm around her sister's shoulder; that when the younger sister approached defendant released his hold upon prosecutrix, and the two girls ran to the home of a neighbor.

Defendant was seen in the vicinity of where the crime was claimed to have been committed by a railroad man; and a blacksmith who had a shop about a mile and a half distant from the home of prosecutrix saw defendant at his shop at about four o'clock on the day the crime was alleged to have been committed. At the blacksmith shop there were rumors that a crime of the character of this one had been committed by a person of a certain description, and to the defendant a by-stander said, "That must be you, Mont," to which defendant made no reply, but a short time later walked away.

1. C. P. Atwood, father of the girl assaulted by defendant, testified as a witness in the case and, after describing a search he had made for the assailant of the girl, testified as follows:

"Saw defendant in Anamosa next day. Mamie (prosecutrix) was with me and showed me the man that committed the alleged assault."

Q. "State who that was."

"Objected to as calling for hearsay testimony. The objection was overruled."

A. "It was Mont Woodworth, the defendant in this case."

This ruling of the court is assigned as error.

Appellant cites on his proposition that proof of the declarations of the prosecuting witness not constituting a part of the res gestae with reference to the identity of the defendant with the person committing the crime is inadmissible as hearsay: State v. Egbert, 125 Iowa 443, 101 N.W. 191; State v. Hoover, 134 Iowa 17, 111 N.W. 323; State v. Stubbs, 49 Iowa 203.

It will be observed that the witness testified, without objection, that he saw defendant in Anamosa on the next day after the offense is alleged to have been committed, and that the prosecutrix was with him, and that she pointed out the man who had committed the assault, so that this statement was properly before the court and stood without motion to strike. The additional question was then asked, "State who that was," and the objection and answer.

The Egbert case holds that declarations by the prosecutrix to others that she recognized the defendant as the man who committed the assault are not admissible when not a part of the res gestae. In this case the only part of the evidence of prosecutrix objected to was as to who the man was who was seen by her and her father in Anamosa. We think there was no error at this point. See State v. Hoover, 134 Iowa 17, 111 N.W. 323.

The defendant offered an instruction to the effect that evidence has been introduced of the use of liquor and intoxication on the part of the defendant at the time the offense charged in the indictment is alleged to have occurred, and that the defendant's use of liquor or intoxication should be considered as bearing upon his intent to commit the offense, and that if the jury believed from the evidence that at the time the offense charged is alleged to have been committed the defendant was so under the influence of liquor or in such an intoxicated condition as to prevent him from forming the specific intent of assaulting prosecutrix with intent to rape, the jury should acquit of such offense.

This instruction was refused, and of such refusal the defendant complains. We think there was no error at this point for the reason that there is no evidence in the record that the defendant was intoxicated at the time in question....