Wildeboer v. Petersen

Decision Date15 December 1919
Docket Number33097
Citation175 N.W. 349,187 Iowa 1169
PartiesKATIE WILDEBOER, Appellee, v. HENRY PETERSEN, Appellant
CourtIowa Supreme Court

Appeal from Tama District Court.--J. W. WILLETT, Judge.

ACTION at law to recover damages for an alleged unlawful assault and attendant defilement of the plaintiff. Trial to a jury, and verdict and judgment for plaintiff for $ 1,500. Defendant appeals.--Reversed.

Reversed and remanded.

Cosson & Francis and H. J. Ferguson, for appellant.

C. A Pratt and R. P. Kepler, for appellee.

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

OPINION

PRESTON, J.

1. Plaintiff alleges that, in the evening of September 27, 1912, defendant did willfully and forcibly assault plaintiff, while she was in a shed, gathering eggs, threw her upon the floor of said building, and did forcibly and with menace, against her will, carnally know and debauch plaintiff, and did defile and have carnal connection with her against her will, causing her to become pregnant and to bear a child, which was stillborn; that she became sick and sore, and sustained injury to her health, reputation, and feelings, causing her great humiliation and sorrow, for which she asks damages. These things are denied by the defendant. This case has been here before. 182 Iowa 1185. On the former appeal, it was held, without a review of the testimony, that the evidence was sufficient to take the case to the jury. Informations were filed against defendant, first charging seduction, and later, rape, by a person other than plaintiff, wherein the date of the alleged transaction is different from that testified to by plaintiff, making some confusion, or perhaps conflict. There were also some contradictory statements by plaintiff, and perhaps some other witnesses, evidence of which was introduced by way of impeachment. In view of a retrial, we shall not set out the evidence. The credibility of the witnesses, including plaintiff, and the weight to be given their testimony, was for the jury. State v. Carpenter, 124 Iowa 5, 98 N.W. 775; Landis v. Interurban R. Co., 173 Iowa 466, 471, 154 N.W. 607. The case was for the jury, and defendant's motion for a directed verdict was properly overruled.

We shall set out enough of the testimony to show the bearing of some of the errors assigned. At the time of the transaction, alleged to have occurred on September 27th, which, we understand, was Friday, plaintiff was a single woman, 28 years of age, and in good health. She had worked out, some years previous, but, at the time in question, was living with her mother and step-father, who were the tenants of the defendant. She was born in Germany, and had attended school but little, and had only reached the second reader. She could understand only a part of the English language. She details the length and extent of her acquaintance with defendant, his visits to her home and attempted liberties with her, by defendant's taking hold of her and pinching her limbs and other parts of her person before the transaction in question. Says he told her at one time that he dreamed he slept with her. At the last trial, she was not in good health, and was unable to give her testimony without taking rests, and at one time, while on the witness stand, fainted in the presence of the jury, and was carried from the room. She testifies that, on the evening in question, at about sundown, she went out to the outbuilding to gather eggs, going first to the chicken house, and then to the north shed of the barn; that, in the shed, someone grabbed her by the shoulder, and, looking around, she saw defendant, and said to him, "What you want?" and he said, "Be still," and put both hands on her shoulder; that she screamed, and he said, "Be still, or I'll choke you," and again, "Be still, or I will fix you," then pushed her dress, and went on top of her and had intercourse with her (we do not give her exact language as to the last sentence); that she fought him with her arms and legs; that she screamed; that defendant then got off of her; that she went to the house where her mother was in bed; that, when she went to the house, she was crying; that she told her mother what had happened to her in the shed; that her calico dress was torn; that, when she went into her mother's room, her hair was down a little, and there was straw in it; that, after she went to her mother's bedroom, she went upstairs, washed herself off, put on another dress, and went down stairs again, and laid on the bed with her mother; that she was crying; that, in 10 or 15 minutes after that, she washed her face, made up her hair, and came out into another room, and then made the meal for the threshers, her mother helping; that, the rest of the evening, she was caring for the work around the house, and serving supper for the threshers, who arrived about 8:30. The mother of plaintiff, testifying through an interpreter, corroborates her testimony as to acts of defendant towards plaintiff before the assault; also, the condition of plaintiff's clothes, hair, and body, immediately after the assault, and as to the complaints; also, about plaintiff's being sick for a considerable time before the birth of the child, and afterwards. Plaintiff's child was born in June, 1913, and lived but a few minutes. Plaintiff's mother testified that the doctor stayed a while after that, and then we have this record:

"Q. Was you in the room that night when the baby was born, when the doctor showed the baby to Katie? A. Yes Q. Was you there when they got the baby laid in the casket, and showed the baby to Katie in the casket? (Objected to as immaterial to any issue in the case, the only purpose at all can be to win the sympathy of the jury as far as may be, by a recital of these facts which have certainly been gone into with sufficient fullness, etc. The court: That may be true, unless there is a possible chance of some effort to contradict it, it being denied in the pleadings--why, I think a reasonable amount of it may be indulged in. Objection overruled. Exception.)"

There seems to have been no direct answer to the question. The next that appears is that witness says she stayed there in the room after the baby was born. Other evidence will be referred to later, and in connection with the consideration of the errors, if it appears necessary.

2. There was some controversy in the trial below between the court and one of appellant's counsel, running through the trial. These matters are set out quite fully in the abstract, and argued at some length. Appellant complains strongly of the alleged misconduct of the trial court in this respect. In view of a reversal on other grounds, we do not decide this point. Davis v. Hansen, 187 Iowa 583, 172 N.W. 1. There may be less contention, and all may be more patient, considerate, and respectful at the next trial.

3. The first error assigned is in regard to the exclusion by the court of testimony of six members of the grand jury, offered by defendant for the purpose of showing admissions by plaintiff, and for impeachment. After showing that plaintiff appeared before the grand jury in September, 1913, when the question as to whether defendant had committed a criminal offense was under investigation, defendant sought to show statements made by her to the grand jury. This testimony was objected to by the plaintiff as incompetent, not being the best evidence of what the testimony was, as given by the witness before the grand jury at that time; that the record of the testimony, kept by the clerk of the grand jury, signed by the witness, is the best evidence, and, as shown by the witness, such testimony before the grand jury was taken, reduced to writing, signed by the witness, and kept by the clerk; and that no showing has been made that such documentary evidence could not be produced. The objection was sustained, and defendant offered to show by said grand jurors that, at the time referred to, plaintiff stated to the grand jury that defendant came to her in the shed, laid her down, and had intercourse with her; that he used no force; that, when asked if he tore her clothes, she replied, "No, they were old and ragged;" that, when asked if she fought him off, she would not answer; that, when asked whether or not she screamed, she said no; when asked whether or not Petersen made any threats against her, she said, "Petersen said nothing;" that, when asked as to when she told her mother about her trouble with Petersen, she replied that it was not until a long time afterwards, and not at the time the trouble occurred; that the county attorney was present, and conducted the examination. The ground of the ruling, as stated by the court is:

"We have come to an abiding conclusion that the same sacredness should obtain over the introduction of testimony as regards what took place before the grand jury that obtains in the endorsement of contracts that are reduced to writing, and that the record that is made before a grand jury is what binds the witness in a controversy that may thereafter arise as regards what took place in the grand jury room. The theory upon which the objection is sustained is that, as a record was kept and signed by the witnesses, as provided by law, that such record becomes the best evidence. That is the gist of the court's view: that is, there is no effort to produce the original signed statement.

"Mr. Cosson: We don't know if it is in existence. I had the clerk of the court investigate, and the county attorney, and both told me that they could not find any record of the minutes. The county attorney had searched very diligently for them. I make this statement to the court professionally.

"The Court: Well, if they were to testify to it, I don't know just what I would do; I think I would...

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