State v. Davenport , 208 Iowa 831 ( 1929 )

The charge against the defendant is what is commonly called statutory rape, alleged to have been committed by the defendant on or about the 16th day of February, 1926, upon the prosecutrix, who was under 16 years of age. Upon trial, the 1. RAPE: jury returned a verdict against the defendant, evidence: finding him guilty of the crime of rape, and the sufficiency. judgment of the court was that the defendant be confined in the state reformatory at Anamosa for an indeterminate term of not more than ten years. The testimony for the State in chief consisted of that of the prosecutrix and one of her girl companions, who is 14 years of age. According to their testimony, they, with another girl friend, were at the skating rink on the evening of the 16th day of February, 1926. There they met the defendant and two of his companions, Ewing and Hoffman. About 9 or 9:15 o'clock P.M., the prosecutrix and her two girl friends and the defendant and his two companions left the skating rink in a Ford car or roadster, and went to the Ewing home in the country, about 4 1/2 miles south of Creston. They all entered the house, built a fire, and proceeded to have what may properly be termed a "wild party." There was music, produced by playing upon a piano and a violin. Shortly after arriving, Hoffman left the home, and in a few minutes' time, returned with another man. Alcohol was then produced, and drinking indulged in by some of the members of the party. The prosecutrix testified that the drinking was done by the boys and one of her girl companions, but that she, herself, did not indulge in the use of the intoxicating liquor. According to the testimony of the prosecutrix and the other girl produced as a witness, there were times during the evening when they coupled off, and separately went upstairs. The other girl testified that she (the witness) and the defendant went upstairs, where the act of sexual intercourse occurred between them. According to the testimony of the two girls, later in the evening the defendant and the prosecutrix ascended the stairway, and the prosecutrix testified that, at that time, the defendant had sexual intercourse with her; that she called for her girl companion, and when she came to the door of the room, the defendant quit. As to this matter, the prosecutrix is corroborated by the other witness, — that the prosecutrix called or "hollered" to her, and that she went upstairs, finding the prosecutrix on the floor. It appears from the testimony of the two girls that, after they all came downstairs, the two girls went out on the porch, where the prosecutrix made complaint as to what the defendant had done. After this occurred, Davenport and Hoffman left the Ewing home together; and about midnight, or a little later, a taxi driver was called from Creston, who returned the rest of the party to said city. As to this latter statement the two girls are corroborated by the taxi driver. The city marshal gave testimony to the effect that, on Saturday following Tuesday, the 16th day of February, his attention was called to the party at the Ewing home; that he made a memorandum at that time, and he is certain that the date claimed was the 16th day of February. Another witness for the State testified as to an admission by the defendant of his being at the party down in the country, and that the prosecutrix was there. The foregoing is, in substance, the testimony introduced by the State.

The defendant, as a witness, denied being at the skating rink on the evening of the 16th of February; denied knowing the prosecutrix; denied any acquaintance with Paul Ewing; denied the illicit acts as testified to by the two girls. Various neighbors of the defendant's testified that his reputation as to general moral character is good. The defendant and the wife of Hoffman (according to the record, Hoffman is also under arrest), Mr. and Mrs. Crago, and Mr. and Mrs. Britten all testified, in substance, that they, Hoffman and the defendant, were at a party at the Britten home 3 1/2 miles from the Ewing farm, playing cards and listening to the radio, from about 9 o'clock on the evening of February 16th until 12:30 or 1 o'clock the next morning.

The foregoing constitutes substantially all of the evidence in the case. The defendant raises no question of the want of evidence corroborative of the prosecutrix, tending to connect the defendant with the offense. His sole contention at this point is that the evidence is insufficient to support the verdict of guilt. With this contention of the defendant's we do not agree. The question of the credibility of the witnesses was for the jury. The testimony of the two girls was sufficient to justify the submission of the case to the jury. We cannot say that their testimony is unworthy of belief. See State v. Huckelberry,195 Iowa 13; State v. Mueller, 202 Iowa 1067; State v. Feldman,201 Iowa 1089.

The court in one of the instructions told the jury, in substance, that, while the indictment fixes the date of the commission of the acts charged as being on the 16th day of February, 1926, it is not required that the 2. CRIMINAL State prove the acts as having been committed on LAW: the exact date set forth in the indictment and evidence: as testified to by the witnesses for the State; alibi: that, if the State had established the sufficiency. commission of the crime charged at the home of Paul Ewing in Union County, Iowa, on any date or time within 18 months before the finding of the indictment by the grand jury, then the exact date of the commission of the crime charged is immaterial. The defendant's complaint as to said instruction is that the same practically nullifies his defense of alibi. It will be observed that all of the testimony for the State fixed the date of the commission of the crime as the evening of February 16, 1926, and that the testimony in behalf of the defendant is that at that time he was at the Britten party, 3 1/2 miles from the Ewing home.

Does the testimony of the defendant tend to establish an alibi? At this point, we quote the following from the testimony of the defendant:

"On February 16th, I left the bakery about 6 o'clock, with Mr. Hoffman and Mr. Lundquist, the manager of the bakery. We took Mr. Lundquist home on Cherry Street, came back and got gas and started for home. We went down the high and dry road, which is a mile west of the Ewing home. That was our ordinary route home. We went home in a Ford touring car. I was not in a Ford roadster that night. I had been making my home with Hoffmans. After we got there, we did the chores and ate supper. Mrs. Hoffman and the children were there. We then went to Henry Britten's home, reaching there about 9 o'clock. We went in Mr. Hoffman's touring car. Hoffman had no other car. His wife and children went with us. We stayed there until after midnight, and then went home together, and I stayed there all night."

Does the testimony of the defendant and of the witnesses testifying as to his whereabouts on the evening of February 16th, within the rules announced in our recent cases, tend to establish an alibi, or was such testimony only incidental to his denial of guilt? In State v. Ireland, 192 Iowa 489, in commenting on an instruction given on alibi, we said:

"The defendant admitted that he was in the city of Des Moines on the night in question, and the evidence shows that Riverview Park could easily have been reached by him in time to have committed the crime. No one contends to the contrary. The claim of the defendant is that he was not at the place of the crime, but that he was at another place, and therefore could not be the guilty party."

What is said in the Ireland case is equally applicable in the instant case. In State v. Debner, 205 Iowa 25, we said of theIreland case that it did not properly involve an alibi at all. We further said in the Debner case:

"Under a plea of not guilty, a defendant has a right to show, not only that he did not commit the act, but that he was doing something else at the time. In fact, very few criminal cases are tried, especially where a defendant is a witness in his own behalf, in which his whereabouts at the time of the act are not inquired into. Such evidence comes under the general defense * * *. In such cases, where an alibi is not claimed, and the evidence of the defendant's whereabouts at the time of the act is incidental to his denial of guilt, no instruction on alibi is necessary or proper."

In State v. Wagner, 207 Iowa 224, our most recent pronouncement upon the subject, we said:

"The circumstances and conditions, the facts proved, to constitute an alibi, must have been such that he could not, at the time thereof, have been at the place of the commission of the offense, and therefore could not have been the perpetrator."

It is manifest that, since the Britten home was only 3 1/2 miles from the Ewing home, and Hoffman and Davenport were concededly traveling by automobile on the evening in question, the testimony in behalf of the defendant does not tend to establish the requisite fact of an alibi, that he could not have been, or that it was impossible for him, at the time in question, to have been, at the Ewing home; but such evidence was only incidental to his denial of guilt, and tended only to controvert or negative the State's evidence of his presence at the Ewing home at the time in question. Therefore, within the rules announced in the Debner case and the Wagner case, any instruction on alibi was improper. However, in the instant case, the defendant is claiming (though improperly so) an alibi. The defendant is not contending that the court should not have instructed on alibi. The court fully instructed upon said question. The court told the jury, in substance, that the defendant had introduced evidence tending to show that, at the time when it is claimed the crime in question was committed, he was at the house of Henry Britten, and that he could not have been engaged in the commission of the crime charged, and that, if he has shown by the greater weight of the evidence that, at the time of the commission of the offense charged, he was at such a distance from the place where the same was committed as that he could not have participated in the commission of the same, this would, of course, entitle him to an acquittal; and that if, upon the whole case, the testimony before them raised in their minds a reasonable doubt that the defendant was present at the place where the crime was committed, if it was committed, then it would be their duty to acquit him. Under the record in this case, the giving of any instruction on alibi was improper, but as to this the defendant does not complain. The defendant in argument complains only of the use by the court in said instruction of the expression "entitle him to an acquittal;" but no exception was taken to said instruction. We have held that the failure to file exceptions to instructions precludes review as to the same in criminal, as well as in civil, cases. State v. Higgins, 192 Iowa 201; State v. Grigsby, 204 Iowa 1133; State v. Vandewater, 203 Iowa 94; State v. Manley, 197 Iowa 46; State v. Gates, 197 Iowa 777. In State v. Debner, supra, this court, in discussing the subject of alibi, uses identically the same expression as was used by the trial court in the foregoing instruction. It thus appears that defendant's complaint at this point is of no avail, because no exception to said instruction was taken, and that the point made in argument is of no avail to the defendant, had exception thereto been properly taken.

Therefore, the only thing remaining for us to consider is defendant's complaint as to the instruction hereinbefore mentioned, said instruction being, in substance, that the time of the commission of the offense is immaterial, 3. CRIMINAL provided that it is shown to have been committed LAW: at any time within the period of the Statute of offenses Limitations. This instruction is abstractly in general: correct, and has often been approved. The time of contention of the defendant is that the commission: instruction would permit the jury to find that instruc- the testimony of the defendant as to his tions. presence at the Britten home on the evening of the 16th day of February was correct, and that the testimony of the witnesses for the State as to the exact date of the occurrence at the Ewing home was erroneous, and yet permit them to find the defendant guilty. As to this matter, this court, inState v. Bell, 49 Iowa 440, made the following pronouncement:

"The prosecutrix testified quite positively that the crime of defendant was consummated on the 7th of July, the time charged in the indictment, at the house of a person named by her. The defendant introduced evidence tending to prove that he was not at the house named within three or four days of the time fixed by the prosecutrix. The instructions given to the jury were to the effect that, if they found the crime had been committed on another day, yet within the time prescribed by the statute limiting indictments in such cases, it would be sufficient to authorize conviction. This instruction and others which left to the jury the determination of the time of the offense are made the grounds of objection. The error of counsel in presenting these points is this: They hold the jury bound to accept the testimony of the defendant's witnesses as conclusive as to defendant's absence at the time named, and that, if he was absent, the testimony of the prosecutrix must be disregarded, and cannot be corroborated because of her error or mistake as to the day upon which the crime was consummated. But the jury were correctly required to reconcile this conflict of evidence, which may have been done by disregarding the testimony of defendant's witnesses, or by accepting it and finding that the prosecutrix had been innocently mistaken as to the precise day of the commission of the crime."

As to the duty of the jury to reconcile the conflicting evidence, the court so instructed in the instant case. See, also,State v. Hayes, 105 Iowa 82. In State v. Luce, 194 Iowa 1306, a crime was charged to have been committed on June 16th. The evidence on the part of the State was definite and certain as to the commission of the offense on said date. The defendant introduced evidence to the effect that he was in the state of South Dakota continuously from June 1st to June 20th. This evidence by the defendant did tend to establish an alibi; for, if the defendant was in South Dakota at the time in question, it was impossible for him, on account of distance, to have been at the place of the commission of the crime in Page County, Iowa. Such testimony was more than incidental to defendant's denial of guilt. The defendant in said case contended that a similar instruction given by the court as to the immateriality of the date of the commission of the offense, provided it was shown to have been within the period of the statute of limitations, wholly undermined his defense of alibi. In said case, we criticized the instruction where alibi is claimed as a defense, although holding that, generally speaking, it is abstractly correct. However, in said case, we held that any error in giving said instruction was without prejudice to the defendant, saying:

"It appears, however, from the record herein that the court submitted to the jury the defendant's defense of alibi in proper form, and gave it full recognition as being a complete defense, if proved, even though its dates were confined to the time between June 1 and June 20, 1919. The only burden cast upon the defendant with reference to his alibi was to prove it by such a weight of the evidence as should create in the minds of the jury a doubt of his guilt. He was not required, either directly or by implication, to cover any other period of time by his defense of alibi. In view, therefore, of the abstract correctness of the instruction in the absence of the defense of alibi, and in view of the fact that the jury, under the evidence, could not have found the crime to have been committed on any other date than June 16th, and of the further fact that the court recognized the full force and effect of the defense of alibi as made, we are convinced that the defendant did not, in fact, suffer any prejudice from the form of the instruction complained of."

We therefore hold that the evidence in behalf of defendant fails to establish an alibi, and is only incidental to his denial of guilt; that, within the rules announced in State v. Bell, supra, and State v. Hayes, supra, there is no merit in defendant's contention; and that, even if it could properly be said that said evidence tends to establish an alibi, then there is no distinction between the instant case and State v. Luce, supra.

Since we find no merit in the contentions of the defendant, the judgment of the trial court is hereby affirmed. — Affirmed.

STEVENS, FAVILLE, MORLING, and KINDIG, JJ., concur.