State v. Fitzgerald , 63 Iowa 268 ( 1884 )

Rothrook, Ch. J.

1. Criminal Law: seduction: indictment held sufficient. I. The indictment charges that the defendant “did seduce and debauch one Nellie Eerree, then aQd there being an unmarried woman of previous chaste character; that said seduction and dehauching of said Nelle Eerree was then and there accomplished by said defendant by means of false artifices, promises and arts; that said defendant then and there promised to give said Nellie Eerree presents if she would allow him to have sexual intercourse with her; that said defendant told said Nellie Eerree that there would be no harm in her having sexual intercourse with him, and that the same was not wrong, and would not hurt or injure; that said Nellie Ferree, being overcome by said false promises and said false statements, and by reason thereof, yielded to said defendant, and allowed him then and there to have sexual intercourse with her, by means of which she became pregnant with child.”

The defendant demurred to the indictment upon the ground that the facts charged did not constitute seduction, and that it charged two offenses. The demurrer was properly overruled. There is no legal standard by which to determine what false promises, artifices and deception are sufficient to constitute the crime of seduction. Of course, mere unlawful commerce for a consideration paid is not seduction. There must be some artifice or false promise by which the virtuous female is induced to surrender her person to the accused. "What would be sufficient to overpower the mind of one woman would be insufficient to lead away another of more mature mind and discretion. In this case, the deféndant was a married man of the age of about fifty years, and Nellie Ferree at the time of the alleged seduction was about twelve years old. She gave birth to a child in September, 1876, when she was about thirteen years of age.

2. Criminal Procedure: right to challenge grand jury. II. The defendant moved to set aside the indictment because he was under arrest and imprisonment at the time the grand jury was impaneled, and he was not brought before the court, nor given an opportunity to challenge the grand jury. The motion was overruled. This ruling was correct. It appears that the defendant was under arrest by some process issued by a justice of the peace. But it does not appear that, at the time the grand jury was impaneled, he had been held to answer upon a preliminary examination. The court, therefore, had no jurisdiction over him to bring him before it upon the impaneling of the grand jury.

3. Escape from Jail: what constitutes: consideration of by jury. III. The defendant was indicted in April, 1876, and was not tried until December, 1882. After his indictment, he was confined in the jail of Mahaslca county for a ° time, when, as the evidence shows, a hole was made m the wall ot the iail by some one, and defendant was at liberty from that time until a short time before his trial. This is about all that the evidence shows as to an escape by defendant. It is claimed that this constituted no evidence of an escape, such as to authorize an instruction by the court to the jury, that they might consider the escape as a fact in the ease. ¥e think otherwise. It is not claimed that the defendant was released from the jail, and it is a fair inference from the facts proved that he escaped therefrom.

4. Criminal Evidence: testimony of prosecuting witness on preliminary examination: reproduction of same, after his death, upon the trial. IY. The defendant was arrested for the crime, and taken before a justice of the peace for a preliminary examination. Nellie Ferree was sworn as a witness upon the examination, and her testimony was taken. The defendant was given an opportunity to cross-ex- . , . amine her, but he did not do so. After the in- ' dictment was found, Nellie Ferree died. The introduced a witness upon the trial, who was present at the preliminary examination, being the same person who filed the information before the justice, and, against the defendant’s objection, the witness was allowed to detail the testimony given by Nellie Ferree upon the preliminary examination.

It is claimed that the witness was not qualified to give the testimony, because it did not appear that he claimed that he could remember and state all that the deceased witness testified to. It is true that the witness did' not at all times answer in an entirely consistent manner the multitude of questions asked him as to his ability to give all of the testimony, but an examination of the record satisfies us that he did claim that hfe was able to give' the substance of all of it. And to be able to give the substance of all that was sworn to by the deceased witness is all that is required. Greenl. on Evidence, Sec. 165; Harrison v. Charlton, 42 Iowa, 573; Fell v. B., C. R. & M. R. Co., 43 Id., 177.

It is further claimed that the evidence was incompetent under section 10 of -article I of the constitution, which provides that in all criminal prosecutions the accused shall have a right “to be confronted with the witness against him.”

This constitutional provision is common to most if not all of the states of the Union, and it has been quite uniformly held that it is not violated by the admission of testimony in a criminal case to prove what a deceased witness testified to at the preliminary examination of the accused before a justice of the peace, or other examining magistrate. Com. v. Richards, 18 Pick., 434; Sullivan v. State, 6 Tex. App., 319; State v. Hooker, 17 Vermont, 658; Kean v. Com., 10 Bush, 190; Walston v. Com., 16 B. Monroe, 15; Marler v. State, 67 Ala., 55; Roberts v. State, 68 Id., 515; Brown v. Com., 73 Pa. St., 321.

These, and other authorities that might be cited, hold that in such case the accused does meet the witnesses against him face to face; that, by the death of a witness, what he gave as his testimony upon the preliminary examination becomes evidence in the case, and may be proved in the same manner as the testimony of a deceased witness in a civil case; that it is no more a violation of the constitution than'itisto allow proofs of dying declarations, which are everywhere admitted as evidence in cases of homicide. We are fully satisfied that these authorities announce a correct rule, and we do not deem it necessary to further elaborate the question. It is proper to state, however, before leaving this branch of the casé, that counsel for appellant cite us to the case of State v. Collins, 32 Iowa, 36, where it is held that in a criminal trial it is not competent for the state to introduce the minutes of the testimony of a witness taken down by the magistrate in the preliminary examination before him, as original evidence against the defendant. In that case the witness whose evidence was sought to be reproduced was present at the trial, and was examined as a witness, and the question now under consideration was not considered nor passed upon by the court.

5. seduction : evidence corroboration of prosecutrix. Y. It is claimed that the testimony of Nellie Eerree is not sufficiently corroborated to meet the requirements of section 4560 of the Code. A careful reading of the evidence in the case satisfies us that the corroboration is ample and sufficient. It consists of a confession by the defendant, made to two witnesses, that he was guilty of sexual intercourse with the child, that he was sorry for ifc, and would do all in his power to make amends for his crime; his frequent visits to her home, and at times in the absense of her parents; his habit of caressing her and callingi her endearing names; his escape from the jail, and other cir-' eumstances; — presenting an\ array of corroborating facts rarely found in cases of this character.

We have examined this whole record with care, and reach the conclusion that the rulings of the court were correct, and that the judgment is just.

Affirmed.