1. Rape : corroboration: designedly planned opportunity. 1. The point most relied upon by appellant for a reversal is the alleged insufficiency of the statutory corroboration of the prosecutrix. It was claimed b3r defendant, all through the trial, that there ivas ’ , . ’ _ . no sufficient corroboration. Motions were made, at the close of the State’s testimony and at the close of all the testimony, to direct' a verdict for the defendant. These motions were overruled., We shall not go into the evidence in detail as to the transaction itself and the corroborating circumstances tending to show that a crime was committed' by someone. We do not understand appellant to contend that the evidence'is not sufficient to show that the crime was committed. The crime may be established by the testimony of the prosecutrix alone. .There may be, of course, two kinds of corroboration. One kind is that her clothes were bloody, and that she could not sit down for some days, and medical testimony as to the rupture of the hymen, and so on. The. other kind is that under discussion, wherein, under Code Section 5188, it is provided that a defendant 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. It is not required that the act itself, or the details and circumstances, be witnessed by some other person, but there must be other evidence than that of the prosecutrix, tending to point out the defendant as the person who committed the crime which the jury may find, from the testimony of prosecutrix, ivas committed. If *569the crime was committed by someone, and there was no other person present who could commit it] and it was shown by evidence other than that of the prosecuting witness that defendant was. present, and that no* one else was, it could not, of course, have been committed by anyone other than such defendant. In other words,' it would be impossible to commit the offense, without the' opportunity to do so. In State v. Stevens, 133 Iowa 684, 686, we said:
“It affirmatively appeared, however, from the testimony of others than the child, that the accused was the only person .in the house at the time, capable of committing the act. This, in connection with the immediate circumstances corroborating her testimony that the crime was committed at that time, was proof of something, more than mere opportunity ; for, by excluding the possibility of anyone else having committed the offense, and confirming the child’s story that it was then committed there under the circumstances, tended to single him out as the real perpetrator.”
It has been held repeatedly, however, that mere opportunity is not, of itself, sufficient' corroboration. This is doubtless on the theory that a man and woman are-very often, in the ordinary, everyday affairs, and under proper and innocent circumstances, alone together. It is appellant’s contention that the evidence of witnesses other than prosecutrix, which is relied upon by the State, shows no more than mere opportunity. It has been often held, however, that, if the opportunity was of defendant’s creation, •and made with apparent deliberation, such circumstances should be .considered in determining whether or not defendant is the guilty part3r. State v. Crouch, 130 Iowa 478: State v. Lindsay, 161 Iowa 39, 44; State v. McGhuey, 153 Iowa 308; State v. Waters, 132 Iowa 481; State v. Bricker, 135 Iowa 343; State v. Norris, 127 Iowa 683; State v. Powers, 181 Iowa 452; State v. Ralston, 139 Iowa 44; State v. Stevens, 133 Iowa 684. In the instant case, the State relies upon the testimony of the brother of prosecutrix, a'nd some other circumstances, to show statutory corroboration; and it contends that the testimony of the brother corroborates *570the testimony of his sister, the prosecutrix, and shows that defendant took the little girl to his room, to create the opportunity to commit the crime which the prosecutrix says was then and there committed. The principal item of evidence- relied upon as corroboration is that of the brother, wherein he states that defendant told him to stay at the gate, while defendant and prosecutrix went to defendant’s room.
It appears from the testimony of the prosecuting witness that, at about 4 o’clock on the afternoon of the day in question, prosecutrix, in company with her 10-year old brother, Richard, and her cousin, a girl about the size of Flossie, met defendant near defendant’s residence, and defendant told Flossie to come up to his room; that he wanted to give her her brother’s picture. Her brother had gone to war, and she and her parents knew that defendant had the picture. Richard went with Flossie as far as the gate. Defendant lived upstairs. Flossie then accompanied defendant to his room, and Richard remained at the gate, or yard, as he was requested to do by the defendant. After defendant and the little girl got into the room, defendant got the picture of her brother, but did not give it to her immediately, but put it in his pocket, and told Flossie to lie down on the bed in the room. According to her testimony, the rape was then committed. We shall not go into the details, except to say that she testifies that she complained that it would hurt, and that he told her it wouldn’t hurt, and not to tell anybody. She describes some of the furniture in the room, a brass bedstead; and witnesses other than Flossie testify thereto. • She estimates that she was on the bed, in the position described, for about five minutes. After the transaction complained of, defendant accompanied prosecutrix to her home, where she lived with her parents, about a block distant. He went ahead of her, and she followed. After reaching the Hogaboom home, defendant observed that Flossie had some small change, and asked her how much she had, and told her to give that to him, and he gave her a dollar. This was in the presence of her father, mother, *571brother, and sister-in-law. That evening, the mother testifies, she noticed blood on Flossie’s skirt, and the girl told her it hurt her to sit down.
The brother testifies that he remembers being at the place indicated by his sister, and with her and his cousin; that he saw defendant there; that witness went just to the gate, then defendant told him to stay down; that defendant said he had a picture of the brother, and told Flossie to come and get it; that defendant said it was up at his house; that the boy stayed down; that they went up into tbe house ; that witness was down by the gate.
The jury may well have found that the opportunity for intercourse was created or manufactured by the defendant, under suggestive circumstances, and that his purpose ih asking the boy to stay outside at the gate was for the purpose of having intercourse with the girl. It occurs to us that .he could have had no other purpose. If he was only wanting to get the picture for prosecutrix, and his purpose and intention were innocent, there could bé no object or reason for not wanting the boy present. The picture was that of the boy’s brother, as yell as Flossie’s, and there would appear to be no reason why the boy should not have gone with defendant and the little girl. We shall not discuss the other circumstances relied upon by the State. The matter referred to was properly corroborative, and we think it was sufficient for the jury. This disposes of the principal point in the case.
2. Some of the instructions are complained of, but they were not excepted to, and this is conceded.
2. Witnesses: character cross-examination. 3. Defendant called five or six witnesses as to defendant’s good character. The questions were not framed so as to call for any specific trait of character. Some of the witnesses say that they were acquainted with ‘ , * , ... . his general reputation as to morality and decency. Some say it was good, so far as c they knew; others that it was good. One witness says he knows his reputation as to general morality and character. It seems to us that the questions in this *572form were somewhat broader than such questions are usually propounded, in regard to general moral - character, or reputation for morality. No objection was made, however, by- the State, as to the form of the questions. These.witnesses. were cross-examined by the county attorney, in regard to. his drinking habits and associations, and as to whether they had heard that defendant’s wife obtained a divorce from him on the ground of intoxication and cruel treatment. One of them says .he understood that defendant’s wife got a divorce, but never heard the grounds. Tt is thought by appellant that this was misconduct on the part of the county attorney. In appellant’s original- argument, there is no brief point- or proposition or assignment of error in regard to this. There is- a reply ■ argument,. an additional argument, a.nd an additional abstract, -filed for appellant. In a later argument,, the matter -is sought to be raised. The matter complained of was not even set out or referred to in the abstract. This .question is not argued by the State, or even suggested in its argument. We assume that the reason for-this is that it was not raised in appellant’s argument or • abstract. We think the'rule contemplates that the errors or points relied upon shall be disclosed -in the opening or original argument, .rather than that the abstract and argument may be prepared on one theory, and then, if appellee’s argument- has been made, an additional abstract and argument and assignments of error, or points, filed. That would certainly be no more than fair to an appellee. Whether this is proper procedure, we need not determine, because of matters which will be now referred to. It may be that it would have been better had the county attorney not pursued this method of cros's-examination. We do not knoAv what was in his mind. He .is not confined, on- cross-examination, to the exact questions asked in chief: ■ Some latitude might be given, in cross-examination, of character witnesses. He may have had information in regard .to the-matters inquired, about, and máy have proceeded, on the theory that- the witnesses had knowledge thereof, and that, if they did, it might qualify their opinion *573as to his character. Whether specific acts may be inquired about on cross-examination, we need not determine, though the writer has his own idea about, it, that a person’s character is judged by his life conduct, and should be so. Aside from all this-, there unis no repetition of questions after adverse rulings by the trial court, and no deñanee or persistence in repeating questions after such rulings. The answers of the Avitnesses to the questions propounded by the county attorney were, to the effect that they did not know, and had not heard .of the matters inquired about. In State v. Tippet, 94 Iowa 646, 651, it aauis held that, AAdiere such ansAvers AA-ere in the negative, and no improper evidence Avas elicited, the mere asking of the questions aaois not prejudicial; and further, that such ansAArers AArere really in defendant’s favor. In that case, the questions were asked over objection. In the instant case, there was no objection to any of the questions propounded by the county attorney, as to any of the matters inquired about, of Avhich complaint is uoav made, except in one or- two instances, Avhicli Avill be now stated. In the cross-examination of the first of the character Avitnesses called, there Avas an objection to the last question asked, and this was in regard to the obtaining of a divorce by defendant’s Avife, on the ground of drunkenness and cruel treatment; and the AAdtness ansAvered that he understood she did get a divorce, but had never heard the grounds. This and one other are the only objections on the subject complained of, in all the evidence of all the Avitnesses. Near the end of the testimony of the next character witness, this question was asked:
“Q. Defendant was quite friendly Avith Sam Christensen this summer?
“Mr. Hess: Objected to as not cross-examination.
“Court: I take it that is preliminary. You may answer.”
:. There A\ras no other objection to ■ any question propounded to this witness. .(The first AA'itness,had testified before, and in the same cross-examination, and without objection, in regard to defendant’s drinking habits.) The *574next witness, after testifying at some length, was asked in regard to the acquaintance and associations of witness with the defendant, and was further asked:
“Q. That was just because you happened to live on the way to his home from the lodge room? (Objected to as argumentative, incompetent. Overruled.) ”
The same witness was asked as to the divorce, and the objection was that the testimony was incompetent, irrelevant, immaterial, and not a fact, and that the decree does not so show. The witness answered, “No.” These two objections are the only ones made to the testimony of the witness just mentioned. To the next two witnesses, there was no objection whatever.
To my mind, it is unbelievable that a jury, acting as such under oath, could have ignored the testimony given on the trial, and decided this case upon these matters, or that there was any prejudice to the defendant. Counsel for defendant seem not to have considered it of enough importance to even refer to it in their abstract filed in this court, or in their original argument.
We discover no prejudicial error, and the judgment is, therefore, — Affirmed.
Evans, J., concurs.