State v. Donovan

Hat, Ch. J.

1. ADULTERY consent of woman not essential. — I. The person with whom the offense is alleged to have been committed was the sister of the defendant’s wife, fifteen years of age. She testified that : J ° the defendant accomplished the connection with g her by force and against her will. The court instructed the jury as follows: “To constitute the crime of adultery as against the man, the consent of the woman to the carnal intercourse is not indispensable, but the offense may, as against him, exist, though the connection was effected by force and against her will.” The giving of this instruction is assigned as error. It is fully in accord with the rule established in State v. Sanders, 30 Iowa, 582. "We are content with the doctrine recognized in that case.

„ wife1* facts mrtcousititut II.The court, after charging the jury that no prosecution for adultery can be commenced but on the complaint of the or wife, and directing them as to what acts upon the part of the defendant would constisuc]1 complaint, instructed the jury as follows: “But if she appeared before the grand jury in response to a subpoena, and testified before them in the case, but not intending to prefer the charge of adultery against the defendant, but gave her testimony supposing she was required to do so, this would not be a complaint by her against her husband within the meaning of the law.” It is objected that this instruction is uncertain and misleading. It is not, we think, vulnerable to the criticism made. It announces a correct rule, and was really in the interest of, and beneficial to, the defendant.

*280 3. —:-: state. *279 III.The appellant complains of the following instruc *280 tion: “The burden is on the state to show that the indictment was found on the complaint of the wife, and failing to do so the jury should acquit.” The objection made to this instruction is that it does not direct that the fact referred to must be proved beyond a reasonable doubt. ’ In State v. Henke, 58 Iowa, 457, it was held that an averment in an indictment that the prosecution was commenced on complaint of the wife, must be proved by the state. Such fact is essential to the conviction of the defendant, but it does not enter into or constitute any part of the facts which go to make up the crime. Whilst, therefore, the defendant cannot be convicted without proof that the indictment was found on complaint of the wife, we do not think it is incumbent upon the state to establish the fact beyond reasonable doubt. The thirteenth instruction asked by the defendant was correctly refused, if for no other reason, because it required the fact of the wife’s complaint to be established beyond a reasonable doubt.

4. CBIMINAX, law: evideuce• missions.1 ad IV. The defendant complains of the instruction of the court that “admissions made in ordinary or random conversations are not generally considered in law as satisfactory proof.” Defendant insists that the court should have instructed that “ordinarily such admissions are weak and unsatisfactory proof.” Whilst the court might, without error, have couched the instruction in the language suggested by counsel, it was not error to employ the language used.

ferdweight' °f. V. The court instructed the jury as follows: “It is competent for a person accused of crime to prove as a circumin his defense that -his previous character as *° involved in the charge was good. Previous good character is not of itself a defense, but is a circumstance which should be considered by the jury in connection with all the other evidence, and it may be sufficient to turn the scale in his favor, but its value as defensive evidence in any given case is to be determined by the jury.” *281 It is claimed that this instruction does not place sufficient emphasis upon proof of good character, and that the court should have given an instruction asked by the defendant upon the subject. We think the instruction of the court gives all the effect to proof of good character which the authorities warrant. See State v. Northrup, 48 Iowa, 583; State v. Horning, 49 Id., 158, State v. Gustafson, 50 Id., 194.

_____ ecutor^mmatenai. YI. The defendant complains of the refusal of the court to instruct the jury as follows: “In this case it is claimed by the defense that there are some circumstances in proof tending to show that there was a combination 01, conSpiraCy between the wife of the defendant and her mother and the wife’s sister, Kate Corcoran, to fasten this crime upon defendant, from motives of malice, pecuniary gain, or other motives. If you find from the evidence such to be the fact, then it will be your duty to acquit. Or if the evidence raises even a reasonable doubt thereon in favor of the accused, you should acquit!” This instruction was properly refused. If the defendant committed the crime with which he was charged, it was the duty of the jury to convict him, without any regard to the motives which led to his prosecution.

YII. The defendant’ assigns as error the refusal of the court to permit the introduction in evidence of a letter written by one John Callagan, to the wife of the defendant, stating that he would give the old lady, her mother, a span of colts as soon as he was able to get Kate; that he was bound to have Kate anyway. This letter was wholly immaterial, and it was properly rejected.

7. evidence tu>nTwitness in?pressions. YIII. The state introduced as a witness one St. John, who testified to certain conversations he had with defendant, in which he admitted having had intercourse with Kate Corcoran. Upon cross-examination he stated that he could not give the language used by defendant, but could testify only from the impressions received and the ideas formed from the conversations. The defendant *282 moved to exclude bis testimony from the jury. The motion was properly overruled. The testimony was properly left to the jury, to be given such weight as they might deem it entitled to in view of the facts elicited upon the cross-examination.

8. ídümebi: 6vidence * error cured, IX. The witness, Kate Corcoran, testified to one act of intercourse between herself and the defendant, in January, 1882. The court permitted her to testify to another act of intercourse occurring one week afterward. This action of the court is assigned as error. The rule of law is that where the charge is of one act of adultery only, in a single count, to which evidence has been given, the prosecution is not permitted afterwards to introduce evidence of other acts, committed at different times and places. 2 Greenleaf on Evidence, S. 47, and authorities cited. The abstract shows, however, that at the close of the argument the district attorney said he elected to rely upon the transaction first testified to by Kate Corcoran. This, in effect, withdrew the evidence of the second transaction .from the jury, and cured whatever error there may have been in its admission.

X. It is claimed that the evidence does not support the verdict. The evidence is not of such a character as to justify us in disturbing the verdict. The judgment is

Affirmed.