State v. Pilcher , 1968 Iowa Sup. LEXIS 863 ( 1968 )

LeGRAND, Justice.

Fortunately we need not recite at length the shocking details of this crime. It occurred on the morning of December 16, 1966. Complaining witness was then working at the Hideout Lounge, a tavern owned by her sister. Defendant, having finished work on the night shift at the John Deere Works, stopped at the tavern, had several bottles of beer and robbed the complaining witness of the tavern proceeds at gunpoint. He then compelled her to accompany him to a secluded spot in or near Des Moines where by force, and against her will, he had sexual intercourse with her. There is dispute about some of the above facts but we state them in the manner most favorable to the State for the purpose of this appeal.

We refer to other specific factual circumstances later as our discussion of the assigned errors requires.

Defendant was charged with, tried for, and convicted of violating section 698.1, Code, 1966, which provides in part, “If any person ravish and carnally know any female by force or against her will * * he shall be imprisoned in the penitentiary for life, or any term of years, not less than five * * * ”

Defendant appeals from the judgment on his conviction sentencing him to 50 years in the penitentiary at Fort Madison, Iowa. He assigns five errors for our review. They are: (1) Failure of the trial court to submit the included offenses of assault with intent to commit rape, assault and battery and assault; (2) failure of the State to corroborate the testimony of complaining witness; (3) refusal of the trial court to permit impeachment of Officer Lewis’ testimony; (4) failure of the trial court to instruct on specific intent and error in instructing on defendant’s use of liquor and drugs; and (5) error in admitting the hearsay testimony of Dr. Schwartz.

I. Defendant asserts he was entitled to have the jury consider as included offenses assault with intent to commit rape, assault and battery, and assault. The court submitted only rape. Defendant raised this question by requesting an instruction thereon, by objecting to the instructions as given, and by motion for new trial.

We agree with defendant and hold he is entitled to a new trial for the trial court’s failure to submit to the jury the three lesser offenses mentioned above as well as the principal crime charged in the indictment.

The general rule requires submission of all offenses which are necessarily included in the indictment and upon which there is sufficient evidence to justify a finding of guilt.

Authority for our conclusion here may well start with State v. Hoaglin, 207 Iowa 744, 223 N.W. 548, although many decisions antedating that case hold to the same effect. In the Hoaglin case we analyzed, distinguished and, where necessary, reconciled our previous opinions to reach what we there announced as the rule for submission of included offenses in a prosecution for rape. In Hoaglin we quoted with approval from State v. Brooks, 181 Iowa 874, 881, 165 N.W. 194, 197, as follows, “ * * * We think the right rule is: Since a verdict may not be directed against the defendant, and therefore an exclusion of an included offense is in a sense a direction for him, it is proper to rule that defendant shall not be put on trial for an included offense if it would be proper to direct a verdict of acquittal, were he charged with that offense alone’’ (Emphasis added.)

In other words if here the only charge against defendant were assault with intent to commit rape, would he have been entitled to a directed verdict? The answer is obvious. This question meets the same negative answer when related to assault and battery and simple assault.

As we said in Hoaglin at page 751, of 207 Iowa Reports, page 551, of 223 N.W., “If an information were filed against a defendant, charging him solely with assault and battery, which includes simple assault, and both of which offenses are included in the crime of rape, would the court under the evidence, be justified in directing a verdict for him ? If yea, then said offenses included in the charge of rape need not be submitted to the jury. If nay, then the court is in error in failing to submit said offenses. If the court, under the evidence, would be justified in directing a verdict "for either one of said offenses, then said offense need not be submitted.”

We held directly in Hoaglin that even statutory rape — which may be committed without force and with consent— includes assault with intent to commit rape, assault and battery, and simple assault. If this is true with reference to statutory rape, it is, of course, even more true when the rape must be committed by force and without consent. In Hoaglin at page 754, 223 N.W. at page 552 we said, “When an indictment or county attorney’s information charges a defendant with the crime of rape (statutory or otherwise), it also charges him with the included offenses, to wit: Assault with intent to commit rape, assault and battery, and simple assault. As to whether or not the court should submit any one or more of these included offenses depends wholly upon the evidence.” (Emphasis added.)

In the instant case the evidence is strong that defendant’s acts, whatever they were, were accomplished by force. There is testimony that defendant threatened the prosecuting witness with a gun; that he struck her; that he threw her to the ground; that he pulled her hair; that he choked her; and that he twisted her arm. There is evidence that she was bruised and scratched. If the jury found sexual intercourse had taken place, it could well find from this evidence the other elements of rape were proven. It could also find, however, that although force had been used intending to commit rape, sexual intercourse had not taken place, in which event it could have found defendant guilty of assault with intent to commit rape. Or, if it found intercourse had not taken place and the force used had been without the intent to commit rape, it could have found defendant guilty of assault and battery. It could also have found an assault occurred, but no force had been used, no sexual intercourse had taken place and no intent to commit rape had been established.

The jury’s determination depended entirely upon when, if at all, it ceased to believe the State’s evidence. The error is that the trial court took this right from the jury and required the State’s version to be believed or disbelieved in its entirety. We ágree the record abounds with evidence of a completed rape but this is. true only if complete credibility is accorded the State’s witnesses.

The State argues defendant was guilty of rape or not guilty of any' offense. The evidence, according to the State, overwhelmingly establishes this fact. Even if we concede it is highly unlikely the jury would have found any verdict except the one it did, defendant nevertheless was entitled to have the jury consider his guilt of a lesser crime.

This is true even if the State’s evidence shows nothing except a completed rape. We considered this matter in State v. Kramer, 252 Iowa 916, 920, 109 N.W.2d 18, 20, where incidentally the defendant was objecting because included offenses had been submitted. After his conviction of an included offense, he claimed the evidence either showed he was guilty of rape or he was not guilty of any crime. He predicated error on the submission of included offenses, and we disposed of his argument this way “ * * * The defendant says if there was anything to submit it should have been rape only, without included offenses. His argument here is that the State’s evidence showed, if it showed anything, a completed rape. At this point he cites authorities to the effect that when the evidence shows the defendant to be guilty either of the highest offense or none at all, included offenses need not he submitted; and he asserts it was error for the trial court to submit the included offense of which he was found guilty. It is necessary only to point out that the jury was the sole trier of the facts; it might believe all of the State’s case, or none of it, or only part of it. If it chose not to believe the prosecuting witness and the police officer on the question of penetration, it had the right to do so. Equally, it had the right to believe the prosecutrix and Mrs. Redenbaugh as to the assault; and so believing, to bring in the verdict which it did. The proposition is self-evident and needs no further elaboration.” (Emphasis added.) Further support for this view may be found in State v. Blair, 209 Iowa 229, 233, 223 N.W. 554, 557. Here, too, it was the defendant who complained because of his conviction of assault with intent to commit rape, claiming that the evidence showed either a rape or no offense at all. We upheld that conviction and stated, “If a consummated rape was perpetrated, there was necessarily an assault with intent to commit rape. The jury might find that the completed offense of rape was not consummated, and still find sufficient evidence of the assault.

“ * * * The jury might well have found the defendant guilty of that crime [rape]. Nevertheless it remains true that there is sufficient evidence of the commission of the crime of assault with intent ⅝ * 5f5 >>

We discussed this also in State v. Hoel, 238 Iowa 130, 132, 25 N.W.2d 853, 854, where we pointed out, “Any apparent inconsistencies in some of our earlier decisions as to instructing upon included offenses, have been removed by our more recent holdings that a charge of statutory rape includes assault with intent to commit rape, assault and battery and simple assault, and that whether the court should permit any one or more of these included offenses depends wholly upon the evidence, although only rarely is the submission of assault with intent to commit rape not required. The test is whether the evidence would be sufficient to take the case to the jury if the included offense in question was the sole charge against the defendant.” (Emphasis added.)

Among the other cases to the same effect is State v. Vochoski, 170 Iowa 246, 252, 150 N.W. 53, 55. There we held, “The verdict was for assault with intent to commit rape. It is urged first that there is no basis in the evidence for this verdict, and that, under the evidence of the prosecutrix, the defendants were guilty of rape, or were not guilty at all. As the evidence was sufficient to prove rape, it was necessarily sufficient to prove the assault and the intent to commit. That the jury may have had a reasonable doubt as to whether the rape was actually accomplished under the circumstances shown, and yet have had no reasonable doubt that there was an intent and attempt to accomplish it, involves no necessary inconsistency.” (Emphasis added.) There is also interesting comment bearing on this question in State v. McCall, 245 Iowa 991, 63 N.W. 2d 874.

From what we have said it is apparent a charge of forcible rape necessarily includes the offense of assault with intent to commit rape, assault and battery and assault. The evidence in the case now before us required that all three be submitted to the jury. Failure to do so was error entitling defendant to a new trial.

II. Although what we have said in Division I requires a new trial, we should discuss several other matters which are cer- ■ tain to arise again at that time. The most important of these is defendant’s claim that he was entitled to a directed verdict because the testimony of complaining witness stands without corroboration. Section 782.4, Code, 1966, provides in part, “The defendant in a prosecution for rape, or assault with intent to commit rape, * * * cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.”

While one may not be convicted of rape upon the testimony of the victim alone, the statute requires only that the corroborating evidence be such as tends to connect the defendant with the crime. As we recognized in State v. Ladehoff, 255 Iowa 659, 122 N.W.2d 829, such evidence is necessarily hard to come by; seldom is this offense committed under circumstances affording direct corroboration. Defendant argues the State showed no more than mere opportunity for defendant to have committed the crime and the presence of dirt and grime on complaining witness’ body in a manner to suggest the crime had been committed by someone. If this were all we would be compelled to agree there would be no corroboration. But the evidence is stronger than defendant admits.

The general rule is well stated in State v. Lahmon, 231 Iowa 448, 449, 1 N.W.2d 629, 630, “The 'other evidence’ need not certainly connect the defendant, nor conclusively point him out as the assailant. It need only ‘tend’ to connect him with the commission of the offense, to the end that the jury may say that they have no reasonable doubt of his guilt.”

We have considered the sufficiency of corroboration in countless cases. However, as we noted in State v. Ladehoff, supra, facts differ so greatly that previous decisions are of small value as precedents. Under the record in the instant case we hold there was sufficient corroboration to make a jury question. The prosecuting witness testified that defendant was in the tavern; that he had a gun; that he robbed her at gunpoint and put the money in a money bag kept at the tavern; that he took her out to a secluded spot and there committed the crime with which he is charged. Subsequently defendant was arrested near the spot where the complaining witness stated the offense occurred. His car was found near there. When arrested he had the gun the prosecuting witness stated he had used in the holdup. He had the money bag taken from the tavern. His clothing matched her description of it. The entire combination of circumstances is such corroboration as to justify submission to the jury. State v. Ladehoff, supra; State v. Taylor, 196 Iowa 1015, 1019, 192 N.W. 294, 295; State v. McElhaney, Iowa, 153 N.W.2d 715, 717.

We also add that defendant’s own testimony is at least partially corroborative. He claims total loss of memory from the time he was in the Hideout Lounge until he was picked up walking near the railroad tracks where the assault is alleged to have occurred. However, he admits he was in the tavern, he admits prosecuting witness was there, he admits the gun was his, he admits that he was walking along the railroad tracks within a short time after the events under investigation. All of this furnishes support for complaining witness’ story.

We find far more here than the “mere opportunity” which defendant argues. We hold the question was submitted under proper instruction and the trial court was right in refusing to give instructions requested by defendant relative to corroboration.

III. We find no merit in defendant’s claim of error in the trial court’s refusal to permit the impeachment of Officer Lewis by the witness Spry. Defendant attempted to show the officer had made certain prior statements inconsistent with his testimony. Even assuming the testimony offered was proper impeaching testimony, the ruling of the trial court was right. No foundation was laid for such testimony by calling the alleged statements to Officer Lewis’ attention so that he could affirm, deny, or explain them. 98 C.J.S. Witnesses § 604, page 594; Law v. Hemmingsen, 249 Iowa 820, 834, 89 N.W.2d 386, 396; Mead v. Scott, 256 Iowa 1285, 1294, 130 N.W.2d 641, 646.

IV. Defendant finds Instruction 11 given by the trial court objectionable. This instruction explained what effect the use of liquor or drugs might have on his responsibility for criminal acts committed while under the influence of either. Defendant insists the instruction overemphasized the importance of the use of liquor and underemphasized that of drugs in the jury’s deliberations. We find the instruction fairly presented the issue and defendant’s objection is without merit.

Similarly we find no error in trial court’s refusal to give a requested instruction which would have required the jury to find defendant had the specific intent of gratifying his passions at the time the offense was committed. Defendant argues he could not be found guilty in the absence of such proof. Specific intent is not an element of the crime of rape. Defendant cites as authority for this proposition the early Iowa case of State v. Hagerman, 47 Iowa 151. This was a prosecution for assault with intent to commit rape. There is nothing in the opinion lending support to defendant’s claim. It is, of course, true that there must be specific intent to commit rape when a defendant is charged with assault for that very purpose. But such intent is not essential to prove a completed rape. In such case the only intent required is a general criminal intent which is supplied by the unauthorized act of sexual intercourse with a female by force or against her will. 75 C.J.S. Rape § 9, page 471; 44 Am.Jur., Rape, section 2, page 902.

V. Defendant attacks the testimony of Dr. Schwartz as improper and prejudicial. This evidence was admissible, if at all, as part of the history given by the prosecuting witness to enable the doctor to diagnose her condition and treat it.

Dr. Schwartz was the attending physician. He was called soon after the alleged rape to examine and treat the prosecuting witness. He testified to cuts, scratches, abrasions and other bodily conditions which he observed. He also stated she was suffering from hysteria and was disoriented. She was, in his words, “a sobbing and hysterical woman.” He further stated he took a history from the prosecuting witness and that such history was necessary to his diagnosis and treatment. Its purpose was to help “evaluate her complaint and provide necessary therapy later on.” The history taken included details of the assault upon her, the use of force, including the gun, and many of the circumstances under which she was defiled by defendant. Many of these circumstances tended to explain the prosecuting witness’ hysteria. Obviously the attending physician would be anxious to discover the cause for such a condition before attempting to determine the treatment indicated.

A mere statement by a physician that a certain history is necessary to his diagnosis and treatment does not make it so. The history must bear some substantial relation to the patient’s condition and the treatment to be rendered. Here the trial court found such relationship existed and we agree.

Perhaps it would have been well to give an instruction explaining to the jury that this medical testimony was not for the purpose of proving the truth of the assertions made by the prosecuting witness but merely to show the basis for his opinion and to offer corroboration of her physical and mental condition immediately after the alleged attack. However, failure to give such instruction in the absence of a request therefor is not reversible error.

Support for our holding in this division may be found in 29 Am.Jur.2d, EvIdence, section 683, page 736; 2 Jones on Evidence, Fifth Ed., section 421, page 794; State v. Blydenburg, 135 Iowa 264, 273, 112 N.W. 634; Devore v. Schaffer, 245 Iowa 1017, 1021, 65 N.W.2d 553, 51 A.L.R. 2d 1041; State v. Miller, 254 Iowa 545, 550, 117 N.W.2d 447, 451.

For the reasons stated in Division I we reverse and remand to the district court for a new trial.

Reversed and remanded.

LARSON, BECKER and STUART, JJ., concur. SNELL, J., and GARFIELD, C. J., concur in Divisions II through V but dissent from Division I and a reversal. MASON, MOORE and RAWLINGS, JJ., concur specially.