State v. Mulholland , 115 Iowa 170 ( 1901 )

Waterman, J.

Certain general objections to testimoney received are first discussed. As they involve no fievf principles, we are content to dispose of them by saying that a careful examination convinces us they are without merit.

1 2 II. It is thought the evidence is insufficient to establish the crime charged, in that"-the prosecuting witness i» not corroborated, and it does not show that defendant accomplished his purpose by “artifice, false promise, deception or flattery.” That some man had illicit intercourse with Frances Shockley, the prosecutrix, is made certain by the fact that she gave birth to a child in the month of October, 1900. She testified that defendant is the father of this child, which was begotten through intercourse had in January of that year. The witness’ statement is supported by the testimony of other persons to the effect that defendant waited upon her for a long period prior to the time last mentioned, taking her driving, walking, and to various places of amusement, and being frequently alone with her at night; that he behaved toward her as a lover might, — kissing her frequently, and holding her at times in his lap. It also appears that during this time she had no other male company. This evidence is all corroborative in its nature, and of its weight the jury were the judges. Andre v. State, 5 Iowa, 389; State v. Shean, 32 Iowa, 88; State v. Curran, 51 Iowa, 112; State v. McClintic, 73 Iowa, 663; State v. Wells, 48 Iowa, 671; State v. Gunagy, 84 Iowa, 177. As to the means by which defendant accomplished his purpose, the prosecuting witness says that previous to that time he had professed love for her, when he kissed and embraced her; that on an afternoon in January, when she w;as at home alone, the defendant called. After some innocent liberties and conversation, he asked her to marry him, and she consented. He said they would be married in April. After talking a few minutes on that subject, he asked to have intercourse with her. She refused. He said that as they were engaged, “it was all right.” Hpon this-she reluctantly yielded. Surely this evidence tends to establish artifice, deception, and a false promise. State v. Hayes, 105 Iowa, 82; State v. Knutson, 91 Iowa, 549.

3 III. The charge of the court seems to us full, fair, and accurate. There was therefore no eri’or in refusing certain instructions asked by defendant. It may well be added here that one of these instructions has no support whatever in the evidence.

4 IV. After defendant’s evidence was in, the state called two witnesses. Eranzlow and Galbraith, who gave evidence as to some material matters over defendant’s objection. It is now claimed that the names of these witnesses were not indorsed upon the indictment, and no notice given of the intention to call either of them, and that the festimony they gave was not in rebuttal, but was a part of the state’s main case. In the objection made by defendant’s counsel to this evidence, it is stated that the names of these witnesses were not indorsed on the indictment, and. that notice had not been given as provided in the statute in order to warrant the,state in calling them; but, outside this statement of counsel, we find nothing in the record in relation to the matter. The situation hardly justifies us in assuming the facts to be as counsel assert. While the attorney general says the claim of defendant’s counsel in this respect is “probably” true, he qualifies this by giving as a reason for so saying that “we find nothing showing otherwise.” But we cannot, on appeal, assume as established all .facts not contradicted by the record. Every presumption is in favor of the correctness of the trial court’s ruling. If a fact is claimed to exist which renders such ruling erroneous, it must be otherwise shown than by mere assertion of counsel in argument.

These being the only questions presented, it follows from what we have said that the judgment must be affirmed.