State v. Woodworth
Decision Date | 19 December 1914 |
Docket Number | No. 29910.,29910. |
Parties | STATE v. WOODWORTH. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jones County; 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, of Anamosa, for appellant.
George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.
The prosecuting witness testified substantially as follows:
I am 15 years old. Have a sister named Hazel, aged 10 years. I went hazel nutting November 22d last. Was 35 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.
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 4 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 characterof this one had been committed by a person of a certain description, and to the defendant a bystander said, “That must be you, Mont,” to which defendant made no reply, but a short time later walked away.
[1] 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:
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 gestæ with reference to the identity of the defendant to 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 gestæ. 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.
[2] 2. 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 commited the defendant was so under the influence of liquor or in such an intoxicated condition as to prevent him from forming the...
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