State v. Bowman , 45 Iowa 418 ( 1877 )

Seevers, J.

1. seduction: previous character. I. In the third instruction the court said to the jury that the previously chaste character of the prosecutrix was presumed, but that such presumption ... . , , , , , 1 . could be rebutted by proven or admitted tacts or the circumstances in the case.

This instruction is correct. State v. Higdon, 32 Iowa, 262.

II. It is' assigned as error that the jury disregarded the instructions and found the defendant guilty on the unsupported testimony of the prosecutrix. A careful reading of the testimony by each member of the court satisfies us all, without doubt or hesitation, that the prosecutrix was'abundantly corroborated. It would serve no good purpose to point out or occupy time and space in stating.our reasons for what so clearly appears in the record.

2. newtriad: 3ury:Uprac-tice. III. Taken all together, the affidavits show that one of the jurors was permitted to leave the jury room for a necessary and proper purpose; that he was accompanied by ^ie deputy sheriff, and that such juror had no conversation while absent with any one except the deputy sheriff, and with him only to the extent-of asking permission to retire. The fact that the bailiff who had charge of the jury when said juror asked leave to retire was tempor arily absent, and he was let out of the room and returned thereto by the deputy sheriff, can make no difference. It affirmatively appears that no possible prejudice resulted from said juror’s having left the room and returning thereto, and therefore a new trial should not have been granted for this reason.

IY. It is not specially urged by counsel that the verdict is against the evidence, still we understand them to so claim. Here, again, a careful reading of the evidence satisfies us that the verdict is sufficiently sustained by the evidence. If the evidence given by the prosecutrix was believed there cannot be a particle of doubt on this subject. That the jury and the court below so believed is apparent. Otherwise, the verdict should have been for the defendant, or a new trial granted. There is nothing on the face of the evidence of the prosecutrix to warrant us in concluding otherwise under the settled practice of this court.

8.- — : newly evidence.' Y. A new trial was urged below and renewed here on the ground of newly discovered evidence. It occurs to us that the evidence was cumulative, but it is not entirely clear that all of it is of that character. But there is another reason why a new trial cannot be granted for this cause, and that is no diligence whatever is shown in procuring the testimony previous to the trial, except that of Mrs. Yest, and it is not shown that she knows anything whatever in relation to the guilt or innocence of the defendant. In fact, the attorney for defendant testifies that he does not know what she will testify to, and the affidavit of Mrs. Yest was not procured. It is true it was shown she was absent and her affidavit could not be procured. This certainly was unfortunate, but a new trial cannot be granted unless the court should conclude if the desired evidence was introduced on another trial a different result might probably be expected, and this cannot be determined from the showing made as to Mrs. Yest. As to what is expected to be proved by Kness and Bernard, no showing whatever as to diligence is made. All that appears is, that these witnesses did not inform defendant of the matters within their knowledge until the'day their affidavits were taken. But this is not sufficient; the defendant must show that he inquired and made efforts to ascertain what these parties and others may have known. He may not have suspected these persons kqew anything, but if he had inquired of persons likely to know and made reasonable efforts this identical testimony might have been discovered in time for the trial.

This disposes of all the errors assigned or discussed by counsel, and the judgment of the District Court in the first case must be

Aeeirmed.

THE SECOND CASE.

criminal law. We regret to say that there is no statute authorizing a new trial in a criminal action on the ground that testimony material the defense has been discovered since the trial, an¿ which could not with reasonable efforts be discovered previous thereto. Such is the rule in civil actions, and we are unable to see why it should not prevail in criminal causes. But we cannot make law and must determine this cause as well as all others in accordance with the law as we find it to exist. The action of the court below was, therefore, correct.

- We cannot forbear remarking that, if the same diligence had been exhibited before the trial in procuring evidence as there was afterward, a different result could reasonably have been expected. The affidavits adduced very strongly tend to show that the prosecutrix was not of previously chaste character, and if we could, under the settled principles of law, consider the affidavits presented, we strongly incline to think we should come to a different conclusion from that to which we have felt ourselves bound to come. We cannot but believe that, if all the evidence contained in the affidavits had been presented to the jury, they would not have found the defendant guilty. But, as has been said, we cannot afford him any relief; his remedy, if any he has, is before another department of the government.

Aeeirmed.