Appellant assigns 65 alleged errors. We consider only those which are argued.
I. It is insisted that the evidence is insufficient to sustain the verdict, and that motions of appellant for a directed verdict of acquittal should have been sustained.
The prosecutrix is a professional roller skater, and was engaged in giving performances at a fair in Elkader. The appellant appears to have been a member of a local band that furnished music for the fair. The testimony of 1. RAPE: the prosecutrix is to the effect that, after the assault evening performance at the fairground, appellant to commit: asked her to go riding with him in a Ford coupé; evidence: that she consented; and that, during the ride, sufficiency. while the car was standing in an unfrequented byroad, with the lights turned out, the acts took place which constitute the basis for the charge of rape. It is unnecessary to set out the details of what she testified then occurred. Her testimony as to the occurrence is uncontradicted, and, if worthy of credit and believed by the jury was amply sufficient to warrant a finding, if corroborated as by statute required, that the appellant attempted, by force and against her will and resistance to have sexual intercourse with her, and was guilty of an assault with intent to commit rape. While her testimony indicated that appellant so far accomplished his purpose as that rape was committed, the finding of the jury that appellant was not guilty of rape, but of an assault with intent to commit rape, requires us to consider only the sufficiency of the evidence to sustain the verdict of guilty of such assault.
It is the contention of counsel for appellant that the *Page 1070 testimony of the prosecutrix is so improbable, so contradictory, so inconsistent with certain admitted or established facts, that we should say it is unworthy of belief. This contention has to do with the conduct of the prosecutrix before and after the alleged assault; the fact that she accepted the invitation of a stranger to go riding with him late at night; her uncertainty and contradictory statements as to the route they took; the limited space in the car; the condition of her clothing; the absence of marks upon the person of the prosecutrix and the appellant; and the relative age, size, strength, activity, and physical condition of the parties.
The prosecutrix was a stranger and unfamiliar with the locality. There are contradictions in her testimony. She admitted that she misstated her age at the preliminary examination, explaining that she then gave the age which she assumed as a public entertainer. She admitted having made some claim for damages, and that, after she testified on the preliminary examination as to her past life, she wrote a letter to a former acquaintance whose name she had there mentioned, appealing to him to stand by her and defend her reputation. There was uncontradicted testimony, aside from that of prosecutrix herself, that two witnesses heard screams from a Ford coupé standing in the road with the lights out, considerably after midnight; that they stopped, and that prosecutrix got out of the coupé; that she seemed dazed, and was crying and shaking; that her limbs did not seem to support her; that she was dropping down, and in a hysterical condition; that she was talking disconnectedly, saying, "Oh, my God," and throwing her hands to her head; that her hair was hanging down over her face, and her dress was wrinkled. Upon the record, we would by no means be justified in saying that the prosecutrix is wholly unworthy of belief, and that for that reason the verdict is without sufficient support in the evidence. The credibility of the witnesses and the weight of their testimony were matters peculiarly for the consideration of the jury. The testimony of the prosecutrix, with all its claimed contradictions, inconsistencies, and unfavorable admissions as to her conduct, was before the jury, and with their conclusion we cannot interfere, on the ground that she was unworthy of belief.
II. It is earnestly insisted that there is no sufficient *Page 1071 corroboration of the prosecutrix tending to connect the appellant with the commission of the offense, as required by Section 13900, Code of 1924.
The two witnesses who saw the prosecutrix get out of the car, as stated above, testified that they were 2. RAPE: traveling in an automobile, and that they passed corrobo- the standing car, heard screams, and turned ration: around and came back, stopping two or uncertain three rods back of the other car. One of them identifica- testified that there was someone in the car, but tion of he did not know who it was. The other, C.L. accused. Crider, testified that it was the appellant, and added:
"Can I modify that answer? I saw his face and I saw it in that light, and it satisfied my mind that it was Ralph Mueller; but in identifying a person it would make [me] feel better to tell the court that, if I had time to see him and speak to him and say it was Ralph Mueller; but I wouldn't go that far. I would go this far, and say it satisfied my mind that it was Ralph Mueller. That is the best I can do."
He also testified:
"My car was facing same direction as his, and my lights toward back of his car. He turned his car to the left. Cars parked about width of car from road on north side, about 30 to 35 feet apart. When he turned, he was probably within a foot of my car."
On cross-examination, he testified:
"Q. And of course you don't pretend to testify under oath that that was Ralph Mueller that was out there, do you? A. I wouldn't swear — no — that it was he. I would swear that it was a familiar Ford coupé. Q. Yes, that's all you would swear to. Isn't that true? A. That is all I can, under oath, — yes, sir. When I came from the south, my lights fell on the front of that car, and when I came back from behind, my lights were on the back of the car. As he turned, my lights were on the side of the car; so for some distance I didn't get to see much of this car, as it was turning around. I saw no one in the car from the back, from the fact that there was a curtain on the back; but, as the car swung to the left, I saw a face through the side door. After it was turning around to go back to the left, *Page 1072 my lights were then facing west; and when he turned around, he turned south to the east in a short circle."
This witness admitted that, on the preliminary examination, he was asked if he saw who was driving, and answered:
"I wouldn't say. The car left there right away."
He further testified:
"I couldn't swear to that then, and don't swear to it now."
This was the only corroborating evidence that tended to connect the appellant with the commission of the offense. In weighing the testimony of the witness, the whole of it, both direct and cross-examination, should be considered together. Perkins v.Holser, 213 Mich. 579 (182 N.W. 49). It was, we think, fairly susceptible of the interpretation that the witness saw the face of the person in the car, and was satisfied in his own mind that it was the appellant, but would not testify positively that it was he. The witness appeared to be anxious to state frankly and fairly his own mental attitude. It is not always the most positive witness that is the most convincing. Unless we are to say that, because he testified only that he was satisfied in his own mind that the person whose face he saw in the car was the appellant, or because of what he said on cross-examination, his testimony was of no probative value whatever as identifying the person in the car, the weight of his testimony was for the jury. The same thing is true of his credibility, as affected by his previous testimony. That the tendency of this testimony, if the jury believed therefrom that the appellant was in the car from which the prosecutrix had just alighted, under the circumstances and in the condition described by these witnesses, was to corroborate her, and to single out the appellant as the perpetrator of the offense, is too plain for argument. Whether there is any corroborating evidence is a question for the court, but its weight and sufficiency are matters to be determined by the jury. State v. Crouch, 130 Iowa 478; State v. Bricker,135 Iowa 343; State v. Hetland, 141 Iowa 524; State v. Vochoski,170 Iowa 246. The court instructed the jury fully and correctly on the subject of the corroboration required, saying that, before the defendant could be convicted of the crime of assault with intent to commit rape, they must find beyond all reasonable doubt, from the testimony of this witness alone, that the defendant was in the *Page 1073 Ford coupé that drove away from the scene of the alleged crime, and that they should not consider the testimony of the witness which was based on mere suspicion or belief, and not founded on actual observation and identification. We think the sufficiency of the corroboration was properly submitted to the jury, and that we would not be warranted in reversing the judgment for lack of corroboration of the testimony of the prosecutrix tending to convict the appellant with the commission of the offense.
III. It is said that error was committed in permitting counsel for the State to ask leading questions of the prosecutrix and the witness whose testimony is relied upon as corroborating her. The record does not sustain the contention. The questions to which this objection was made did no more than call the attention of the witness to the particular matter inquired about. Fitch v.Mason City C.L. Traction Co., 116 Iowa 716. No abuse of discretion in this respect is shown. State v. Drake, 128 Iowa 539.
IV. Error is assigned on the refusal of the court to give each of 21 requested instructions. So far as the requests were correct statements of the law, the subjects to which they referred were, save as hereafter noted, sufficiently covered by the charge given.
One requested instruction was to the effect that, if the prosecutrix had in her possession articles of clothing the condition of which would sustain her claim that she was assaulted, and failed to produce such articles, 3. CRIMINAL such failure should be taken as a circumstance LAW: against her, tending to discredit and contradict instruc- her claim that she was assaulted. There was no tions: evidence to which such an instruction could have unsupported been applicable. The prosecutrix testified that issue. her clothing was not torn, and that her hat was not injured.
Another requested instruction related to the absence of marks, scratches, bruises, or wounds upon the person of 4. CRIMINAL prosecutrix or defendant, and said that that LAW: fact should be considered by the jury, in instruc- determining whether there had been a struggle. tions: Another said that, if it was found that general in prosecutrix, in person or through others, sought lieu of a large amount of money specific instruc- tions. *Page 1074 from the defendant before the formal criminal charge was filed, that fact might be considered, in connection with all the other evidence, as bearing on her purpose in making the charge. The instructions given directed the jury to consider all of the facts and circumstances in evidence which they believed entitled to credit, in determining whether the defendant was guilty, and that, in determining the weight and credibility of the testimony of the prosecutrix they might consider her conduct, both before and after the alleged assault. While it might not have been improper to have given the thought of the two last mentioned requests, we think, in view of the charge given, that it was not error to refuse them.
"The office of an instruction is to state the rule of law applicable and pertinent to the matter to be determined, and not to marshal the evidence, or by special mention to give undue prominence to any particular phase or feature of the fact case made by either party to the controversy. * * * When and to what extent instruction of this nature shall be given rests very largely in the sound and impartial discretion of the court."Kelly v. Chicago, R.I. P.R. Co., 138 Iowa 273.
V. Numerous complaints are made of the instructions given to the jury. The complaints are without merit. In many instances, the objections are so plainly lacking in merit as to require no extended consideration. Others will be briefly referred to.
The court gave three instructions on circumstantial evidence. The matter of the instructions is not objected to, but it is insisted that there was no circumstantial 5. CRIMINAL LAW: evidence in the case to which they could apply. instructions: With this we cannot agree. The testimony of circumstan- witnesses to seeing the car, hearing screams, tial seeing prosecutrix alight therefrom and as to evidence: her condition and appearance, was purely basis. circumstantial, so far as it had any tendency to establish the commission of any crime. The instructions were properly given.
The court instructed that the fact that a crime had been committed by someone could be established by the testimony of the prosecutrix alone.
"It is one thing to find that a crime has been committed, *Page 1075 and it is quite another thing to say that the party charged committed the crime." State v. John, 188 Iowa 494.
The statute requires corroboration of the prosecutrix, tending to connect the defendant with the commission of 6. RAPE: corpus the offense. The crime may be established by the delicti: testimony of the prosecutrix alone (State v. evidence: John, supra; State v. Kessler, 189 Iowa 567), sufficiency. and the jury were properly so instructed.
The court instructed that the fact that the defendant had not been called as a witness could not be considered 7. CRIMINAL by the jury for any purpose. This was not error. LAW: State v. Weems, 96 Iowa 426. See, also, State v. evidence: Carnagy, 106 Iowa 483. failure to testify: instruc- tions.
VI. Complaint is made of the conduct of attorneys for the State during the trial. The record discloses several more or less spirited exchanges between counsel that had better have been omitted, but nothing, we think, of a prejudicial character.
VII. Many excerpts from the closing argument for the State are set out, which are claimed to have constituted prejudicial misconduct on the part of the attorney for the State. Very many of the statements objected to, appear on their face to have been made in response to arguments for defendant; many were clearly nothing more than legitimate comment and argument upon the testimony; a few, perhaps, evince an excess of zeal: but, after a careful examination, we think they were not so manifestly prejudicial as to require a reversal. We think that no prejudicial misconduct is shown.
VIII. In connection with a motion for a new trial, the appellant presented affidavits to the effect that, among the people of the community where the trial was held, there was a bitter public sentiment against the defendant; 8. CRIMINAL that the trial was attended by a large concourse LAW: new of people; and that upon each day of the trial trial: there were one or more marked manifestations, hostile taking the form of spontaneous demonstrations in attitude of the presence and hearing of the jury, audience. manifesting the feeling and attitude of hostility toward the defendant, and derision, opposition, and condemnation of efforts on his behalf; and that several times the court found it necessary to sharply admonish the audience *Page 1076 to refrain from making demonstrations of their feeling and attitude.
The record, aside from these affidavits, discloses that upon one occasion a misunderstanding arose between counsel as to whether the cross-examination of the prosecutrix was completed, and that there was "laughter and demonstration in audience." Whereupon the court said:
"This defendant is entitled to a fair trial, and there will be no demonstration from the audience."
In this instance, it is clear, the court took prompt and effective measures to prevent any unseemly or prejudicial demonstration on the part of the audience.
The affidavits deal only in generalities. The statement is that demonstrations occurred, but of what kind or character is not shown. No specific facts or occasions are mentioned, save in the one instance shown by the record of the trial to which we have referred. It is a mere conclusion to say that the alleged demonstrations manifested a feeling of hostility toward the defendant and opposition to efforts which were being made in his defense. There is no showing of facts from which such an inference can be drawn. The whole matter goes to the question whether the defendant had a fair trial. There is no proof of facts, as distinguished from an inference to be drawn from mere conclusions, that the court did not secure the defendant a fair trial. Whatever occurred was in the presence of the court, to whom the motion was addressed. The court overruled the motion, thereby holding that the trial had been fair. We said in State v.Kennedy, 195 Iowa 1059:
"In the absence of any proof to the contrary, we may rely on the guarded discretion of the court in affording the defendant a fair trial."
We think no ground for reversal is shown here.
We have examined the record with care, in the light of the extended and critical argument for appellant. The case appears to have been carefully tried. The instructions were very full and explicit, and plainly and repeatedly directed the attention of the jury to the close question of fact in the case and to the necessity for corroboration of the testimony of the prosecutrix, tending to connect the defendant with the commission of the offense, and said that this must be found, if at all, in *Page 1077 the testimony of the witness C.L. Crider, and that his testimony, if based on mere suspicion or belief, was not to be considered.
We find no prejudicial error, and the judgment is — Affirmed.
EVANS, STEVENS, and MORLING, JJ., concur.