State v. Bartlett

Bishop, J.

The assault alleged is charged to have been committed upon the person of Bertha Bartlett, a female child under the age of fifteen years. It appears in evidence that the prosecutrix is the daughter of the defendant. It is her testimony that her mother was away from home at the time; that she (prosecutrix) had taken her little brother and sister, four and six years old, respectively, to bed with her, in a downstairs room, and that her brother Walter, twelve years of age, had gone to bed upon a couch in a dining room adjoining; that the defendant, who slept in an upstairs room, came down in the night, and the assault was then committed upon her, while she was lying in bed with the other children.

1. Corroboration. I. The statute (Oode, section 5488) provides that the defendant in a prosecution for an 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. Belying upon this statute, de-' fendant contends for a reversal, for that the record does not disclose any sufficient corroboration of the testimony of the prosecutrix. It will be observed, tbat tbe statute goes no farther than to require corroborating evidence tending to connect tbe defendant with tbe commission of tbe crime. Tbe fact tbat tbe crime charged has been committed by some one may be established by tbe testimony of tbe prosecutrix alone. State v. McLaughlin, 44 Iowa, 82; State v. Cassidy, 85 Iowa, 145. Tbe State introduced as a witness tbe boy Walter Bartlett, and be testified tbat on tbe night in question be was awakened by his sister Bertha crying. He sa^s there was a light downstairs; tbat upon looking through tbe doorway into tbe bedroom be saw bis father, partially undressed, standing by tbe bed; tbat “ be slapped Bertha, and told her tbat, if she ever gave him away, be would fix her so tbat she would not be able to give him away again.” This, evidence certainly tended to strengthen and corroborate tbe prosecutrix in connecting tbe defendant with tbe offense which she testified bad been committed upon her. And if believable, tbe jury would be warranted in finding tbe same to be sufficient for tbe purposes of corroboration. Counsel for defendant do not seriously contend otherwise. But it is said tbat tbe jury was not authorized to give the-evidence of tbe boy any weight, inasmuch as be bad been successfully impeached. Tbe effort at impeachment consisted of evidence on tbe part of several different witnesses for defendant to tbe effect tbat tbe boy bad at other times and places denied having seen bis father in tbe bedroom, and, further, that bis mother made him speak in accusation of bis father in substance as be now testified. Tbe credibility of tbe boy was a question for tbe jury. Likewise tbe credibility of tbe witnesses brought on to impeach him. Even if tbe jury believed tbat tbe boy bad made some statements out of court inconsistent with bis present testimony, still they bad the' right to accept bis sworn version of tbe affair as tbe truth. It appears tbat they did so, and in respect thereof they bad tbe approval of tbe trial judge, and they have our approval. Roberts v. Morrison, 75 Iowa, 321; Judge v. Jordan, 81 Iowa, 519; State v. Van Vliet, 97 Iowa, 387.

II. Tbe further contention is made that the evidence, taken as a whole, is insufficient to warrant a verdict of guilty. We have read the record with care; and we conclude that, when the jury had proceeded so far as to find the witnesses for the State worthy of belief, any other verdict than the one returned would have been a reproach upon the administration of justice in the State.

2. Argument; misconduct. III. Misconduct on the part of the State’s attorney in making his closing argument to tire jury is complained of. Waiving the question as to whether the matter properly appears in the record, we are content to say that nothing occurred which would warrant interference with the judgment. At most, the attornejy did no more than to prefer the question whether the assault as instantly complained of was the only one of the kind of which defendant was guilty. A witness for the State had testified that after defendant had been arrested he sought out an interview with his daughter, the prosecutrix; that in the course thereof she said to him, “ I told you if you done that again I would tell it, even if you killed me.” The question as preferred by the State’s attorney was predicated upon such evidence, and a showing is made that this was in answer to the argument of counsel for the defendant, wherein, in substance, he sought to discredit the evidence of the prosecutrix by pointing out that more favorable opportunities to make an assault had bee'n open to defendant, notwithstanding which nqne had been made.

3. Impotency: instruction. IV. As a witness in his own behalf, defendant testified that for nearly a year before the alleged assault he had been unable, by reason of impotency, to engage in the sexual relation. It is now complained of that the court did not in any way refer to such subject-matter in the instructions to the jury. No request was made for an instruction, but, aside from this, we think none was required to be given. While impotenoy may be a sufficient defense to an indictment for the consummated offense of rape, it will not excuse an assault with intent. 1 Wbarton, Criminal Law (8th Ed.) section 552; 1 Bishop, Criminal Law, sections 737, 738.

4. Punishment. V. The judgment was that the defendant be imprisoned in the- penitentiary for the term of twenty years, that being the maximum period authorized by the statute. The defendant complains of the sentence as excessive. We think otherwise. No fit characterization of the offense of which he was convicted can be made in words. No punishment short of the extreme could approach the adequate.

The record is without error. The judgment has our unqualified approval, and it is affirmed.