#### State of Iowa v. Frank Ralston, Appellant.

1 Rape: corroborating evidence. The fact that the crime of rape has been committed by some one may be shown by the testimony of the prosecutrix alone; and corroborating evidence which tends to support her testimony in connecting the defendant with the commission of the crime is all that is required, the sufficiency of which is generally speaking a question for the jury. The corroborating evidence in the instant case is held sufficient to support a conviction.

3 Same: flight of defendant. Where there is other evidence tending to connect defendant with the commission of the crime of rape, the flight of defendant may be considered as furnishing *45additional corroboration, although standing alone it would be insufficient for that purpose.

3 Jurors: challenge foe cause. Where the opinion which a juror has formed and expressed is based solely upon the facts stated in a newspaper article which he has read concerning the alleged crime, and he states that his opinion is not unqualified but that he can lay it aside and determine the case wholly upon the evidence, the overruling of a challenge for cause is not erroneous, although defendant may not have exhausted his peremptory challenges.

4 Corroboration:. instruction. Where the court instructs that mere opportunity to commit the crime of rape is not sufficient corroboration to connect a defendant with the commission of the offense, and that the evidence must be such as to identify and single out the defendant as the one who committed the crime, a further instruction that if the statements of defendant as to what occurred did not admit more than opportunity need not be given.

5 Same: flight: evidence. Where a defendant accused of rape left the scene of the crime and remained away, though but for a short time, and stated that he left because he was afraid there might be trouble, there was sufficient evidence of flight to warrant a submission of > that question for consideration, as tending to corroborate the prosecutrix’s evidence of identity.

6 Included offenses: instructions. Where the evidence shows that the defendant is either guilty or not guilty of the offense charged, no instruction regarding included offenses is required.

7 Evidence: prejudice. Admission of wholly immaterial evidence which cannot result in prejudice is not erroneous.

8 Opening statement: reading of indictment: statement of plea. Mere failure of the county attorney to read the indictment does not indicate that it was not read by the clerk as provided by statute. The purpose of the statute requiring its reading and a statement of the plea is to advise the jury of the issue to be tried, and in the absence of a contrary showing the indictment will be presumed to have been read, which, together with a statement of the plea by the court, is sufficient.

9 Rape: sentence. Where the evidence upon which defendant was convicted of rape shows that he had several times previously -attempted to perpetrate the crime, a sentence of twenty years was not excessive.

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      *Appeal from Monroe District Court.-*— • HoN. F. W. Eichel-BEEGEcR, J udge.

Tuesday, July 7, 1908.

The defendant was convicted of the crime of rape and he appeals.—

*Affirmed.*

*D. W. Bates*and *E. D. Everett,*for appellant.

*H. W. Byers,*Attorney General, and *C. W. Lyon,*Assistant Attorney General, for the State.

SheewiN, J.—

The indictment charged the defendant with the crime of raping his sister, Lucy Ralston, an unmarried woman about forty-five years old. The mother died in 1906 and thereafter until the crime was committed the defendant and his sister lived together on a farm six miles from Albia.

i. Rape: _ evidence?*1118 The 'sister testified that the crime was committed about 9 o’clock at night in her own room; that she had gone to her room and was partly undressed when the defendant opened the door and entered the room; that he immediately took hold of her and told her • to take off her clothes; that she refused to do so, whereupon he forcibly removed all of her clothing, threw her upon the bed, and consummated his purpose. The sister also testified that as soon as she was released she ran from the house to the house of Mr. Estlock, who was their nearest neighbor, about forty rods away. The evidence conclusively shows that the crime of rape was committed at that time, but the defendant insists that the corroborating evidence required by section 5488 of the Code was not furnished by the State. The statute requires only that the prosecutrix be corroborated by other evidence tending to connect the defendant with the commission of the offense. The fact that the crime has been committed by someone may be established by the testi*47mony of the injured person alone; and the corroborating evidence is sufficient if it tends to strengthen and corroborate the prosecutrix in connecting the defendant with the commission of -the crime. *State v. French,*96 Iowa, 255 ; *State v. Baker,*106 Iowa, 99. The prosecutrix testified that the defendant removed all of her clothing, and that she was entirely nude Avhen the crime was committed, and when she fled to the Estlock home, and the evidence is conclusive that she was in that condition when she reached Estlock’s. After the defendant’s arrest he told one of the State’s witnesses that “ he was in one room, and his sister slept out in another room, and that he came out to get a drink of water, and she was taking a bath and was naked . . . and when he came in she said: ‘ It is a’pity a person cannot be let alone;’, and she commenced to screaffi and went to the door and went out and ran across the field that way screaming.” It is undisputed that the house in which they lived had but two rooms, a kitchen and another room, and that the prosecu-trix slept in the kitchen and the defendant in the other room. The jury may well have found from the defendant’s statement that he went into his sister’s sleeping room and there found her naked. That he was in a room with her when she was in that condition, and that she immediately left the house naked and ran screaming towards Estlock’s, he admitted. When she reached the home of Estlock, she was still naked and had been raped. And we are of the opinion that the facts stated to the witness by the defendant tend to connect him with the commission of the crime, and hence furnish some corroborating evidence.

2 Same: flight of defendant. There was also evidence tending to show that the defendant fled soon after his sister left the house, and that he remained away a day and a half, when he returned and was at once arrested. It is a well-settled rule that the jury may consider evidence of flight as tending to show guilt. *State v. Poe,*123 Iowa, 118. And as the corroboration required by the statute may be fur*48nished by facts and circumstances as well as by direct testimony, anything in the facts and circumstances that tends to show guilt necessarily tends to connect the defendant with the commission of the. crime. It may be that flight alone should not be held to be sufficient corroboration. Indeed, it is quite apparent that it should not be so held in all cases, but that its weight must be determined by the other facts and circumstances proven. Where there is other evidence tending to connect the defendant with the commission of the crime and evidence of flight which tends to show guilt as also furnished, we think the latter may be considered by the jury as furnishing additional corroboration. Generally speaking, the sufficiency of the corroborating evidence is properly a question for the jury, and if it be of a substantial character, the court will not interfere with the finding. *State v. Stevens,*133 Iowa, 684; *State v. Norris,*127 Iowa, 683.

3. Jorors: for cause. A juror was called after the defendant had exhausted his peremptory challenges, and, after his examination as to qualification, the defendant challenged him for cause. The challenge was overruled, and the ruling is presented as error demanding a reversal. The juror testified that he had known the defendant for some time; that he heard about the case the day after the transaction was alleged' to have taken place and read an account of it in the Albia Republican, which. “ attempted to state the facts relating to it.” He said that he read the article carefully at home and discussed it there; that he there and then expressed an opinion to his wife as to the guilt or innocence of the defendant based upon the article. He was then asked a question as follows: “ Of course you still have that opinion that you formed then from the article that you read and that you expressed to your wife ? ” To which he answered: “Yes, sir; I suppose I have.” The challenge followed the answer. On his examination by the State and by the court, he testified in substance that the opinion formed and expressed to his wife was based solely on the facts-stated *49in the article that he had read; that it was not an unqualified opinion, and that he thought he could lay it entirely aside and hear the evidence on the trial, and render a verdict on such evidence alone, whereupon the challenge was overruled. We think there was no error in the ruling. It fairly appears that the. opinion expressed was so qualified as not to be sufficient ground of challenge. It was based wholly and solely upon the truth of the facts stated in the article, and falls within the rule announced in the following cases, among others: *State v.*George, 62 Iowa, 682; *State v.*Sater, 8 Iowa, 420; *State v.*Ostrander, 18 Iowa, 451. In *State v. Crofford,*121 Iowa, 395, relied upon by the defendant, the juror had formed an unqualified opinion from newspaper accounts and from personal discussions of the facts and circumstances. He also testified that he was not unprejudiced; that he believed what he had heard and read; that his mind was made up, and that it would take evidence to change it. The record before us presents no such showing, and hence the *Grofford*case is not controlling.

4. Corroboration : instruction. Complaint is made of the refusal to give instructions 2 and 3 asked by the defendant. Both requests were to the effect that evidence of opportunity to commit the crime would not alone be evidence tending to connect the , . , . it» defendant therewith, and m addition to this, the second asked the court to instruct that, if the statements of the defendant as to what occurred at the time did not admit more than an opportunity, they would afford no corroboration. The court fully instructed that mere opportunity to commit the crime would not be sufficient corroborating evidence to connect the defendant with the commission of the offense, and said that the corroborating evidence must tend to “ identify and single out the accused ” as the one who committed the crime. These instructions were sufficient, and there was no error in refusing those asked.

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      5 Same-flight-evidence.
      *49The court instructed on the question of the appellant’s flight and told the jury that evidence of flight might be con*50sidered as “ tending to corroborate the prosecutrix in her tes-timnny as to the identity of her assailant.” These instructions are assailed on the ground-that evidence of flight furnishes no corroboration and because there was insufficient evidence of flight. What we have already said on the subject of corroboration answers the first contention, and the second objection is not in our judgment sound. The defendant not only left the scene of the crime so that his arrest could not at once be made, but he told one of the State’s witnesses that he left soon after his sister started for the neighbor’s, and left because he was afraid there might be trouble over the matter. The fact that he did not conceal himself for a long time does not, in the light of his own statement, tend to disprove the flight.

6. Included offenses: The trial court told the jury in substance that it should find the defendant guilty of the crime charged or acquit, and the appellant urges that there should have been instructions on included offenses. None were asked, and . . m our -judgment none were called for by the record. The facts either proved the crime of rape or nothing. The defendant testified that he did not touch his sister at the time, and the jury could not on the evidence have found him guilty of an included crime. We have repeatedly held that no instructions on included offenses are necessary when the facts show that the defendant is either guilty of the crime charged or not guilty. *State v. Murphy,*109 Iowa, 116; *State v. Carter,*100 Iowa, 501, and cases cited therein; *State v. Hathaway,*100 Iowa, 225. The cases relied on by the appellant presented a different state of facts, and they are therefore not in point.

„ ^ prejudice.. A witness was asked what the defendant said after his arrest about having a “ billie ” or “ razor ” on his person when he was arrested. An objection to the question was overruled, and the witness answered that the defendant said he did not have anything of the kind. We fail to see the materiality of the question, and *51think it should not have been allowed, but we do not see how it could ha.ve prejudiced the defendant. There was nothing to contradict it and no other testimony on the subject.

8. Opening statement: Indfctinent-pieímentof After the prosecuting attorney had made his opening statement to the jury, the defendant objected thereto because he had not followed “ the statute requiring the counsel for the State to read the indictment and state to Üie jury the plea of the defendant.” The court thereupon told the jury that the defendant had entered a plea of not guilty. Code, section 5312, provides that the clerk or county attorney must read the indictment and state the plea. The presumption is that the proceedings were regular, and hence the mere failure of the county attorney to read the indictment does not necessarily indicate that it was not read by the clerk. *State v. Ostrander,*18 Iowa, 435. The purpose of the statute is to advise the jury of the issue to be tried, and we do not think a literal compliance therewith is required. So long as the jury is fully advised of the exact issue that will be presented, there can be no prejudice to the defendant if it be not stated by the persons named in the statute.. Hence the statement of the plea by the court was sufficient.

9 rape-sentence. The defendant was sentenced for twenty years at hard labor, and he insists that the punishment is excessive and should be modified by this court.- We have examined the record with care, and have given the defendant’s claim careful consideration, and do not feel that the judgment should be disturbed. The prosecu-trix testified that the defendant attempted to rape her at different times during the year immediately preceding the time in question, but that she had successfully resisted his other attempts. If this testimony is true, and we find no reason for doubting it, except the relationship existing between them, the judgment is not excessive, and should be, and it is, *affirmed.*