State v. Brown , 86 Iowa 121 ( 1892 )

Robinson, C. J.

The defendant is accused of having seduced Miss Flora Robley, on or about the fifteenth day of September, 1888. Evidence was submitted, on the part of the state, which tended to show that the defendant visited Miss Eobley as a suitor during several months, both before and after the date specified. She testified, in substance and effect, that she was seduced under the promise of marriage; that a child, of which the defendant is the father, was begotten on the first day of February, 1889, and born on the twenty-third day of the following October. The defendant admits having visited the prosecutrix, but denies the alleged promise of marriage and sexual ^intercourse.

1. Seduction: evidence: statement of conclusions. I. Miss Eobley was permitted to testify, against the objections of the defendant, that he commenced “keeping company” with her the first of July, 1888, and that he treated her' “very affectionately.” The phrase “keeping company” is so commonly used, and so generally understood, that we think there was no error in per-, mitting the witness to use it. It has a definite signification, as applied to the relations of unmarried people, and the answer which contained it was not open to the objection that it gave the conclusion of the witness as to the fact. If the witness used the phrase in any other than the ordinary sense, that could have been fully shown on cross-examination. But we think the court erred in permitting the witness to state that defendant treated her “very affectionately.” The answer was in the nature of a conclusion of the witness. The facts upon which it was based should have been stated, and the jury permitted to determine their effect.

2. -: -: understanding and inferences of witness. II. A witness, who testified to having had a conversation with the defendant, stated that “he never said he intended to do any particular thing with Flora Eobley, and he never said that he intended to have sexual intercourse with her. ” He was then asked the following: “Didn’t the defendant say, in conversation with you, in speaking of taking improper liberties with this girl, that he was ‘going to get there?’ ” This was objected to as incompetent, immaterial, and leading; but the ■objection was overruled, and the witness was permitted to answer: “That was the understanding that I took from it.” No exception to the ruling was taken, but the witness was asked. “Didn’t he say that, in sub.stance?” That question was objected to on the same . ground as the former one, but, without any ruling on the ■objection, the witness was permitted to answer: “That is what I understood. That is the understanding I inferred from it.” A motion to strike the answer was sustained as to the latter' part only, and an exception to the ruling was taken. The questions were leading, the answers were clearly incompetent and immaterial, and the last one was not responsive to the question. The understanding of the witness may not have been justified by the language used by the defendant, and in no view of the case was it properly received in ■evidence. The objections to the questions should have been sustained. Had the motion to strike not been made, the defendant would not have been in a position to complain because he failed to except to the ruling on the first objection, and there was no ruling on the ■ second; but the motion .showed that he did not waive his objections and his exceptions to the ruling on the motion, preserved his right to insist that the court erred in receiving the answer, and permitting it to ■ stand. The motion should have been sustained as to the entire answer.

3. -: -: proof engagement of accused to another than prosecutrix. III. The defendant claims that he was engaged to be married to a Miss Preston, in the months of July, August and September, 1888, and that he tolcl- Miss H°bley 0f that engagement about the first of July of the year named. He testified as a witness, and was asked questions which were designed to draw out the-facts in regard to his engagement to Miss Preston, and Miss Robley’s knowledge of it; but objections to such questions were sustained. We think the answers should have. been received. It was important for the jury to know the exact relation which existed between the prosecutrix and the defendant at the time of the alleged seduction. It is true that, if the facts in regard to the* alleged engagment to Miss Preston and Miss Robley’s knowledge of it were as claimed by the defendant, he might nevertheless be guilty of the crime of which he is accused; yet the prosecutrix claims that the alleged seduction was' accomplished by means of a promise of marriage, and. the defendant was entitled to have the jury informed as to what knowledge she had of the relation, if any, which existed between the' defendant and Miss Preston at the time the seduction is alleged to have been accomplished. A chaste woman would be less likely to surrender her virtue at the solicitation of a man she knew to be engaged to marry another, even though he also promised to marry her, than she would to a person engaged to no one but herself. That a chaste woman may be seduced by a person she knows to be under promise of marriage to another is no doubt true, but the jury should know the fact in order that they may weigh the influences which operated upon her, and thus reach an intelligent conclusion.

4. ‘ jjlAfWkq accuse<l ta IV. The defendant claims that one Henry Schoffe visited Miss Robley as a suitor from the first of July,. 1888, until the first of May, 1889, and he-offered evidence for the purpose of show-^hat StLCk was ^he waS' refused. We are of the opinion that it. should have been received. Section 4560 of the Code-provides that a person shall not be convicted of the. crime of seduction upon the testimony of the woman,. “unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.” It is well settled that the corroboration need not extend to all the essential elements of the offense, and that proof that the accused visited the woman as a suitor, and that they conducted themselves as lovers usually do, may be sufficient. See State v. Smith, 84 Iowa, 522, and cases therein cited. The corroboration in this case was largely evidence that the defendant visited the prosecutrix at her home, accompanied her to church, and otherwise conducted himself as her suitor. But the effect of such evidence might well have been lessened, if not wholly destroyed, by showing that during the time the defendant was so visiting her she was accepting similar attentions from another, who had opportunities for sexual intercourse with her.

5. -: -: presumption as to chastity of prosecutrix. V. The court instructed the jury as follows: “* * You should, in the first instance, assume that the prosecuting witness was of chaste character at said time, and this presump^ion must continue, unless the contrary is shown by a preponderance of the evidence. * * *” The defendant objects to that portion of the charge on the ground that it required him to overcome the presumption that the prosecutrix was of chaste character, previous to the alleged seduction, by a preponderance of the evidence, and insists that it should be sufficient if the evidence created a reasonable doubt as to whether her character was chaste before that time. The question thus presented is not an open one in this state. It was considered in the recent case of State v. Hemm, 82 Iowa, 609, and the rule of the instructions under consideration was approved. See, also, State v. Wells, 48 Iowa, 673.

VI. It is urged in behalf of the state that some of the errors which we have pointed out are without prejudice, and that none of them are of sufficient importanee to justify a reversal of the judgment of the district •court. Some of them, it is true, are of little importance, when considered with other portions of the record; but some are more serious, and of a prejudicial nature. A careful examination of the entire record leads us to the conclusion that the defendant has not had that fair trial, free from prejudicial error, to which he is entitled.

The judgment of the district court is reversed.