State v. Robinson , 170 Iowa 267 ( 1915 )

Gaynor, J.

Defendant in this case was charged and convicted of the crime of rape committed upon one Bena Runge on or about the 10th day of May, 1913, in the City of Rock Rapids, County of Lyon. From the conviction, he appeals to this court.

The first error assigned relates to the action of the court in permitting the prosecuting witness to testify that other parties, on the same night and about the same time, assaulted her and had sexual intercourse with her.

The defendant admits that he had sexual intercourse with the prosecuting witness at the time, but claims that this was with her consent.' He claims that he had intercourse with her twice on this day, once at the dump grounds during the afternoon, and once near the German Church in the evening. She, however, claims that there was but one act of sexual intercourse between her and the defendant, and this was in the evening, somewhere up town, the exact place she is not able definitely to fix. She says: “It was after we got across the railroad bridge. I do not know how far we went, and did not know where we were. After we got out across the railroad bridge, he threw me down and had connection with me. I cried and started to holler, and he never paid any attention to that. I kicked and tried to pull away so as to keep him away from me, but I could not do so. After that, he let me walk along again and Creglow came along and did the same thing. I scratched and tried to holler, and they never paid any attention to what I said, and then Creglow left and Robinson, the defendant took me along with him to the Fairgrounds. Then he took me in the barn at the Fairgrounds and here made me sit down on the bed. "When I got to this barn there were seven men there. The room by the barn was quite a small one, and had a bed in it.”

Thereupon, the following testimony was admitted over the objection of the defendant:

Q. And then what was done? Robinson was there, was he? A. Yes, sir. Q. And then what was done, Bena? What did they do to you then, if anything? A. And then they all went out, all but Slim. Q. Slim? A. Yes, and he stayed in there. And then he had connection with me. Q. Well, what did you do when he tried to have connection with you? A. Scratched and hollered. Q. And then what happened after that ? A. Then he -left the room and another one came in. Q. And what did he do ? A. He tried the same thing. Q. And what did he do ? A. He left the room without. Q. He left the room without? A. Yes, sir. Q. You kept him from it, did you? A. Yes, sir. Q. Did anybody else come in? A. Yes, sir. Q. Do you know who that was? A. Frank. Q. That is all you know? A. Yes, sir. Q. A fellow by the name of Frank ? A. Yes, sir. Q. And what did he do, if anything ? A. He did the same thing as Slim did.

And then they all went out and I stayed there and then they all came back together and sat down. I think when they came back there were nine of them altogether, including Creglow and Bobinson. And then they all talked together and two others came to the door and then two of them went out and they talked to those people on the outside and then they came in, too. Then Bobinson and Jack Creglow took me out and Slim came afterwards. Bobinson and Creglow took me. away from the barn. Joe Bobinson said that if I would tell anything about this he would find it out and kill me. This was said at the barn and I was scared. Do not know how long I was in the barn but it seemed a long while to me. After' we left the bam Bobinson and Creglow took me to the end of the fairgrounds. They both took a hold of me and kept a hold of me until we got to the gate of the Fairgrounds. Then Slim came and Creglow let go of me and Slim took a hold of me the same way that he did. I had never seen or heard of Slim before that night. After Slim took a hold of me, they took me to the wagon bridge, one on either side of me. When we got to the bridge, Bobinson let go of me and Slim led me along. This all occurred at Bock Bapids in Lyon County, Iowa.

Q. What did Slim do with you, Bena? A. Led me into the house. After Bobinson left, Slim led me to a house, Q. Now, I want to ask you whether or not Bobinson came to that house at all, that you know of ? A. No, sir.

She further testified that she did not see Creglow after he had intercourse with her until she saw him down in the room at the Fairgrounds.

She further testified that Slim was a large man; that she had no acquaintance with him prior to this meeting; that when Slim took her into the house, the location of which she is unable to state, he made her undress and made her get into bed. He put the light out. Then he came into the bed. She says she tried to get out, but he kept her there. When she attempted to get out, he made her lie down. She did not sleep any during that night; that he had sexual connection with her; that she tried to prevent him from doing so; that in the morning, Slim telephoned for a team; that the telephone was in a room other than the bedroom; that he locked her in the bedroom when he telephoned; that a team afterwards came; that Slim took her out and made her get into the buggy; that there was a pian called Thomas in the buggy at the time; that Siim gave her a dollar about the time she started away; that he said nothing about money before that time. Slim was about twenty-seven or twenty-eight years old. This man Thomas took her away from the house to a wagon bridge, then made her get out. After she got out of the buggy, she went to get breakfast.

Defendant, testifying for himself touching the act of intercourse, said: “The place where I had connection with her in the evening was at the east side of the German Church. I had connection with her there once, but did not use any force. She was willing and consented to it. After that, I met some boys that I knew and talked with them. They asked who the girl was. I told them a lady friend of mine.” He testified that when he got through with the boys he went over across the railroad track and turned north and went by the side of the factory until he got to the Rock Island tracks, and when he got as far as the depot, they met Creglow. “While we were standing there, she said she thought she saw Mrs. Hamlin coming. “We went over to the Holliday machine shed. I stood there, she and Creglow did not stop, but kept on over to the shed. I stood there to see who those people were. While I was standing there Bena and Creglow came back. Then we separated from Creglow. ’ ’ He then describes their route until they reached the Fairgrounds, about eight or nine o’clock. When they got there, they met Jack Creglow again. Thereafter, he details the meeting of certain parties and conversations between the prosecuting witness and himself and the others, about six in all, but denies that anyone had sexual intercourse with her at the Fairgrounds. After they had been in there awhile, he and Creglow went over to the well to get a drink and left the other parties there. They were gone fifteen or twenty minutes. The same crowd was in the room when they got back. Bena was sitting on the bed. When they got back, they stayed there about twenty minutes. Heard nothing about any abuse of Bena. They offered to take her to Hamlin’s or to the preacher’s where she had resided before. She said she wouldn’t go. “Then we told her we would get her a room at the hotel, but she didn’t want to go there. After we started to leave the Fairgrounds, Slim overtook us. After Bena said she didn’t want to go up town, Slim said she could go and stay with him and she said, yes, that she would go with him, and then Slim and Bena started south.” Defendant says he accompanied them as far as the gate, but did not go to Slim’s house; that immediately after Slim and Bena left, Creglow and he went up town. This was about 10:00 o’clock at night.

Creglow testified: “I saw the prosecuting witness at the Fairgrounds that night with the defendant. I was in the habit of going down there quite frequently. We met these other men half way between the training bam and the west entrance, and we talked with them I should say five or ten minutes.' Slim, or one of the parties, suggested going back to the barn, and we started back to the barn. When we got back to the barn, one of the parties opened the barn and we went in. Then we opened the office door and went to the office. This office contained a bed, chair, stove and table. While we were in there, we talked generally, Bena sitting on the bed. Nobody said anything improper or indecent to her, and she ivas not assaulted. She appeared in good spirits and cheerful. Defendant and I stayed at the well twenty-five or thirty minutes getting a drink. When we returned, the same crowd was present. Bena was sitting on the bed in the same position in which we left her, and she said nothing to the effect that she wanted to get out. Rube was sitting in a chair in front of her. After sitting there a while, Joe and Bena and I Avent out together. We talked about taking her up town to Hamlin’s where she could stay all night. We were about three hundred yards from the office when Slim came up and said, ‘Where are you going?’ We said, ‘We are going to take her to Hamlin’s.’ She didn’t say anything then, but afterAvards said she didn’t Avant to go there. Then Ave proposed to take her to the preacher’s house. She said she didn’t want to go there, hut gave no reason. We then talked of taking her to the hotel. She didn’t want to go there. Then Slim said, ‘Well, she can go Avith me.’ I don’t remember what she did, but she went. I didn’t see them any more that night.”

We have set out so much of the testimony as discloses the record made touching the matter complained of. The error assigned upon the admission of this testimony i$ as follows:

1. Criminal law: other offence: admisibility: rape. “In permitting the prosecuting witness, Bena Runge, over defendant’s objections, to testify that Jack Creglow, on the night when it is claimed defendant assaulted her, had sexual intercourse with her up town, and also ™ permitting her to testify that on the same one ‘Frank’ had intercourse Avith her in the bam on the Fairgrounds and that Lee Harper or ‘Slim’ had intercourse with her, both at the bam and at his house, the defendant not being present at any of said times, and said several acts of sexual intercourse being separate, distinct, and independent transactions.”

This assignment of error is based upon the assumption that these were separate, distinct, and independent transactions, having no relationship to and in no way tending to support the State’s contention that the defendant committed the act charged to have been committed by him. Acts committed by others of a similar character to the one charged against him, when committed in his absence, have no probative forcempon the issue tendered.

/"^It is true, as a general proposition, that in a criminal case of any kind, it is not competent for the State to show the commission of other crimes, separate, distinct, and independent of the crime, even where the crime — the independent, separate, and distinct crime — was committed by the defendant himself, and much more certain it is that independent, distinct and separate crimes of a like character, committed by others, even upon the same person, are not, as a general rule, admissible against the defendant. But to these rules there are exceptions, and those exceptions have peculiar relevancy and force in this case./''’

; If her story is true, and it was for the jury to say whether ' it was true or not, this defendant had, at the time of the meeting with this girl, a slight but friendly acquaintance. yÁe took her from where he met her, under a pretense that he desired to communicate something to her, to tell her something. This was very early in the evening and then in the heart of the city. She walked with him, he having hold of her, to a lonely place. He then assaulted her against her will, and committed upon her the crime charged. Thereafter, he took her by a circuitous route, until he met the young man Creglow. From there he took her down to the machine sheds, in company with Creglow. He there stepped aside, and .Creglow then committed the same act upon her as charged against this defendant. The defendant, still keeping her in his possession, if her testimony is true, still controlling her actions, for she said it was under protest, took her to this room at the Fairgrounds. There he met with these other friends of his. He and Creglow, having accomplished their purpose, went out from this room and left her there, they say to get. a drink of water. She claims that, during their absence, she was again ravished by two of these parties left with her in the room. From every act, from the first to the final act, when she was surrendered to the custody of Slim and he took her to his house, it would appear that the defendant was supervising and controlling her actions. If her testimony was true, Creglow and the defendant took hold of her, led her from the Fairgrounds and turned her over to the possession of Slim, who then, with their knowledge and apparent consent, if her story is true, took her to his home. Every fact is so closely related with the first fact that they cannot be said to be separate, distinct, and independent acts. -

In the case of the State v. Hogan, 145 Iowa 352, the defendant was charged with rape. The defendant was convicted, appealed and complained of the admission of evidence tending to show the commission of the same act by one Rohn shortly before the commission of the act by the defendant.. The court said: ‘ ‘ The testimony on behalf of the state tended strongly to show concerted action between Rohn and one Hausler and the defendant. The same offense was committed by each one in succession in a barn' at the home of the defendant, and in the successive order above named. They were together at the bam shortly before the offense was committed by Rohn, and were together at the time it was committed by the defendant, and for some hours thereafter. Rohn procured the presence of the prosecuting witness at the barn. It is claimed on behalf of the defendant that Rohn’s offensé was entirely distinct and separate,' and that it was committed, before that of the defendant, and that it was, therefore, prejudicial to permit evidence of it. . . . It appears also from the evidence on behalf of the state that the offense was again committed by the defendant some hours later in the day at another place not far away. The state introduced its evidence concerning both of the alleged acts on the part' of the defendant, and at the close of its evidence elected to rely upon the last.” It was claimed in that case that this election further separated Rohn’s act from the act upon which eonviction was asked. The court said: “ If it were true, that the act of Rohn was separate and independent from that of the defendant, then the contention of the defendant as to its-inadmissibility as evidence would be good. But, under the evidence on the part of the state, the act on the part of Rohn was so connected and related to the acts of the defendant that it was admissible as one of the surrounding circumstances of the case. Being admissible as such circumstance, the fact that it involved the commission of another crime did not render it inadmissible. ’ ’

As bearing upon this question see State v. O’Connell, 144 Iowa 559; State v. Vance, 119 Iowa 685; State v. King, 117 Iowa 484; State v. Brady, 100 Iowa 191; State v. Desmond, 109 Iowa 72.

The general rule is, that the State is not permitted, in its efforts to establish the crime charged, to introduce evidence of another substantive offense, but the rule is that, where the acts are all so closely related in point of time and place and so intimately associated with each other that they form one continuous transaction, the whole transaction may be shown, what immediately preceded and what immediately followed the act complained of, for the purpose of showing the scienter or quo animo of the party charged. This, it seems, is clearly true when, through the mist of it all, the jury can discern the presence and dominating character of the accused. Every fact, every circumstance surrounding the parties, attending their action, from the time of the meeting to the separation, is material to a proper understanding of their relationship, and has probative force in establishing their conduct towards each other.

Distinct, independent, substantive offenses, not related to the one charged, committed at different times or different places, cannot be shown against the defendant, but not so when the time, the place, the circumstances and the parties all have relation to and are directly or indirectly involved in the act charged at the time of its commission or immediately before or after, and we think this is the doctrine of the cases cited.

We think the court did not err in the admission of this testimony.

It is next contended by appellant that the county attorney in his argument to the jury was guilty of misconduct. This error is assigned in the following language:

2. Criminal law : trial: argument: misconduct: inflammatory appeals: new trial. “Misconduct of the county attorney in making improper and prejudicial remarks to the jury in both his opening and closing arguments to the jury, and in which he attacked the character of the defendant, when it was not in issue, and appealed to the passions and prejudices of the jury, declaring among other things, ‘that if it had been my daughter instead of Bena Runge, this man would not be on trial here, but Simon Fisher would be on trial. ’ ’ ’

Unfortunately for us, the argument of counsel for the defendant was not taken down by the reporter, and is, therefore, not in the record of this case.

It is claimed by the State that much of the argument of the state’s attorney, of which complaint is made, was in reply to statements made by defendant’s counsel in their argument to the jury. The portions of the argument of the state’s attorney, to which special attention is called and which are claimed to be highly inflammatory and not warranted by the record, are substantially as follows:

In the opening argument the counsel said: “This crime is infinitely more revolting than the taking of human Ufe. If any of you have sisters — and some of you have — if any of you have daughters — and a number of you have — you would infinitely rather that your daughter would be slaughtered in cold blood than to have been treated as Bena Runge was on this night. ’ ’

Again in speaking of Slim and Frank, he said: “But they are both gone, and if they weren’t gone, they would be sitting behind the table where Joe Robinson and Jack Creglow are, and if I retain my health and hold this office long enough, they are going to be there. ’ ’

Again, “Gentlemen, I am frank to say that in the trial of a criminal case, I always try as hard as I can, to keep within the record, and even to be fair to the defendant, but in a case such as this, that touches the whole community, that touches the morals of the community, in a crime like this, where, if the defendant should go free every home is in danger, every virtuous girl that goes upon the streets of Rock Rapids or other villages in the county, are at the mercy of the ravisher. I say it is hard, gentlemen, in the argument of a case of this kind, to prevent yourself from injecting a little feeling into a case. I never can entirely detach myself from the thought that it might not have been Bena Runge that fell into the hands of these fiends. It might have been your daughter just as well — it might have been your sister— it might have been my daughter, and I thank God that it was not my daughter — you thank God it was not yours, because if it had been my daughter, this man would not be on trial here, but Simon Fisher would be on trial.”

At this point the court admonished Mr. Fisher and said, “I think you are going too far, and the jury is cautioned not ^to regard that argument, and counsel is cautioned not to repeat it.”

Thereafter, counsel said in argument: ‘ ‘ She was in there like a caged bird, with no means of defense, as helpless as a little babe, at the hands of these men, and the surprise to me is, gentlemen, that there was not one man, one fellow there, at least one, that had left in him a spark of what you and I call manhood. Why gentlemen, in the wildest and wooliest days of the West, in the mining camps, out upon the ranges, anywhere, there is nearly always, even among the roughest of men, one fellow or more who has retained a spark of manhood, and if that child had been brought before them and any man had threatened to violate her person, there would have been a gun drawn, and someone would have said, ‘The first man who touches that girl dies,’ but I am sorry to say you didn’t find any of it in Rock Rapids that night, not a spark of manhood in any one of the men that were there. Why, gentlemen, I believe that there is not one of you — there is not a right thinking man anywhere, that, under such circumstances, would not have said, ‘Before you violate the person of that girl, you will walk over my dead body.’ That is what you would have said. You could not help but say it. When you think of your mother — when you think of your sister— when you think of your wife — when you think of your daughters, you could not help but have said it. No man could help but say that and do that, that has the least spark of manhood in his makeup, and yet they were all foul.' Ah, gentlemen, it is a pity — it is a pity. I am sorry that such things can be done in so-called civilized communities, but they have happened. ’ ’

While the argument is set out in full in the abstract, the portions above set out are the only portions of which complaint is made.

We are invited to say that this was misconduct on the part of the counsel and reliance is had upon State v. Proctor, 86 Iowa 698; State v. Helm, 92 Iowa 540; State v. Hasty, 121 Iowa 507, 520; State v. Harmann, 135 Iowa 167; State v. Fuller, 142 Iowa 598; State v. Hunt, 144 Iowa 257.

Taking the cases in the reverse order, we find that State v. Hunt, supra, was an action for seduction, and it was complained that the prosecuting attorney, in his closing address, pointed to the child, then a mere infant, and declared it was all the evidence that any man would ask on the defendant’s connection with the offense. The court said: “This was, in effect, an exhibition of the child to the jury for the purpose of determining an alleged resemblance, and was seriously improper conduct on the part of counsel,” and reference was made to State v. Danforth, 48 Iowa 43, and State v. Harvey, 112 Iowa 416. In the first ease, it was held reversible error to exhibit the child to the jury for the purpose of determining a supposed resemblance. This action of counsel was held improper and a ground for reversal because it sought to introduce a factor into the case indirectly, which was not permitted to be done directly.

In State v. Fuller, 142 Iowa 598, counsel for the State said: “How many men are there whom you know, and whom I know, that, instead of going to a literary society and pulling John Fuller out by his coat collar would have gone and brought him out either with a club or a gun?” The court said: “We have often held that such remarks are sufficient to justify a reversal.” This was a case in which the defendant was indicted and tried for the desertion of his wife.

In State v. Harmann, supra, defendant was tried and convicted of adultery. The counsel for the State in addressing the jury said: “Instead of trying a case of adultery here, Gentlemen of the Jury, you should be here for the purpose of determining whether or not Jacob Kiefer was guilty of murder if he had exercised his manhood and taken a gun or pistol and shot through the heart of Dr. Harmann.” This court said: “There is enough of a disposition for unthinking and unreasoning persons to take the law into their own hands without having it encouraged by ministers of the law. It was the duty of the attorney who made this statement to discourage the very thing which he was countenancing, and there was no other reason for making the statement than to inflame the passions and induce the jury to right a supposed wrong which a party had neglected to perform on his own behalf. ... It was improper for counsel to suggest such a remedy. The case in this respect is ruled by State v. Proctor, 86 Iowa 698, and State v. Helm, 92 Iowa 540, each of which is closely in point.”

In State v. Hasty, supra, — this was an action for seduction —the attorney for the State said: “While I would not advise taking human life, Lemuel White would be justified in taking the life of defendant.” This court said: “This was but the expression of the attorney’s opinion of what White would, have the right to do in the future, not of what he ought to have done, or should do. In this, it differs from State v. Proctor.” This court further said in substance, “When the remarks indulged in relate to a future course of conduct and do not pertain to the result of the trial, they can hardly be regarded as prejudicial, and especially is this true if not calculated to unduly arouse the passions of the jury or divert its attention from the proper discharge of its duty. ’ ’

The court, though expressing disapproval of the language used, and stating that it was unsound in law and opposed to modern notions of good morals, did not consider it sufficiently prejudicial to justify a reversal. It related rather to the opinion of what the attorney thought Lemuel White would be justified in doing in the future rather than to a statement as to what the jury should do in the particular' case in avenging the wrong complained of; while in the ease at bar, there was a direct appeal to the jury to do what counsel claimed anyone with a spark of manhood would do to avenge the wrong which counsel says should have' been avenged, and which he would have avenged if it had been his daughter, by the taking of a human life.

It is impossible to lay down any hard and fast rule in matters of this kind, so much depends upon the character of the ease, the nature of the remarks complained of, the disclosures made by the evidence, and the argument of counsel which preceded the argument complained of. We recognize the fact that it is difficult for counsel often, even in a fair and honest discharge of his duty, to so moderate his speech as not to, at least in some degree, appeal to the sympathy, prejudice, or even passion of the jury, and we do not want to be understood as even suggesting any fixed rule of limitation upon his rights in addressing the jury. Bach case must be determined on its own facts, and in the light of the circumstances that attended the delivery of his address.

One elected to the office of county attorney, to represent the people in the prosecution of criminals, occupies a close relationship to the administration of the law and to the court, and should have no ambition beyond that laudable one to see that no guilty party escapes. But it is not for him to assume, as prosecutor, the guilt of the defendant at any stage of the proceedings. The defendant is presumed to be innocent until by the evidence he is shown to be guilty. The jury are empaneled and sworn to determine this question. Their judgment should be unbiased, unprejudiced, uninfluenced by any consideration other than the evidence submitted to them, and the law given to them by the court. Appeals to the passion, prejudice, or to the jury to stand up like men and show their disapproval of the crime charged, by convicting the defendant, are unauthorized and unjustified. Jurors are but human and respond humanly to those appeals. Called into the arena by counsel to condemn crime abstractly, and to show their manhood or lack of manhood in this manner^ they are led into the trap that requires them to condemn the defendant to vindicate themselves. This is not the spirit of our law. This is not the purpose for which arguments to the jury are permitted. This is subversive of a fair administration of public justice. It is against the law and good morals.

We think, in this ease, counsel went too far. Knowing counsel, we believe that he did this honestly, but in a mistaken zeal for the cause he had espoused. In view of this record, much of what was said by counsel in his argument had little to justify or support it.

3. Rape: coroboration: on what phase of case necessary. It is next contended that there was insufficient corroborating evidence. We pass by this argument with the remark that a careful reading of the record satisfies us that there was abundant evidence of corroboration. The law requires corroboration only in so far as it is necessary to connect the defendant with the commission of the crime. The commission, of the crime may be proven by the testimony of the prosecuting witness.

4. Rape: force and resistance : mental and physical strength of parties: instructions. Complaint is made of a portion of the twelfth instruction given by the court to the jury, in which the court said: “You are instructed that the force necessary on the one hand to commit the crime of rape, and the resistance required on the other hand to constitute the crime, depend upon the relative mental and physical strength of the parties, and the circumstances surrounding them at the time of the alleged assault. ’ ’

We think this instruction was justified by the record, although there was no direct testimony as to the mental or physical strength of either party. The parties were both before the jury, and the jury were competent to judge of that matter.

5. Criminal law : flight in absence of accusation: effect of: instruction. It is next objected that the court erred in instructing the jury in the- fourteenth instruction given by the court, in which the jury were told that if they found from the evidence that the defendant- fled from the town of Boek Bapids to avoid arrest and prosecution for the offense charged against him, “you may con-offense charged against him, sider this evidence and the circumstances of his leaving, with all the other evidence and circumstances proven on the trial, and give to the evidence and circumstances attending defendant’s departure from the-State, such weight and credit as you believe it entitled to receive in determining the guilt or innocence of the defendant. ’ ’

It is claimed that there was no evidence to justify this instruction, but it appears that the defendant left the state soon after the time when it is alleged that this crime was committed. It does not appear, however, that he had, prior to the time he left, been charged with the commission of the crime; but it is a very old saying that ‘ ‘ Conscience does make cowards of us all,” and further, “The wicked flee when none pursue.” We think there was sufficient evidence to warrant this instruction. •

For the errors pointed ont, the ease must be and is— Reversed.

Deemer, C. J., Ladd, Weaver, Evans, Preston, JJ., concur. Salinger, J., special concurrence.