State v. Weaver , 182 Iowa 921 ( 1918 )

Stevens, J.

1. Criminal law : evidence: other offenses: conclusive showing of intent. The statute defining the crime charged is as follows:

“Any person ovér eighteen years of age who shall wilfully commit any lewd, immoral or lascivious act upon or with the body or any part or member thereof, of a child of the age of thirteen years, or under, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, or of such child, shall be punished by imprisonment in the penitentiary not more than three years, or by imprisonment in the county jail not more than six months, or by fine not exceeding five hundred dollars.”

The indictment in this case charged lewd, immoral, and lascivious acts upon the body and person of Mildred Churchman, a child under the age of thirteen years. Minutes of the testimony of other girls under the age thirteen years, who testified to similar acts committtd by the defendant upon them at other times than the act complained of, were attached to the indictment. Before one of these girls was called by the State as a witness, the defendant’s attorney called the attention of the court to the minutes of the testimony attached to the indictment, and objected to the county attorney’s calling any of these witnesses, or attempting to offer the matters set forth in the minutes of their testimony in evidence upon the trial of this case, bio record appears to have been made of these objections; but we gather, from the statements of counsel appearing in the record, that there was general discussion upon the question, and the court announced that the testimony would not be received. Later, one of the witnesses was called and sworn; but before any questions were propounded to her, the attorneys for the defendant, objected to the witness’ being examined relative to the alleged immoral acts committed upon her by the defendant, stating that the court had already announced its ruling upon the admissibility of the testimony and that any attempt npon the part of the State to offer the testimony would be prejudicial to the defendant, and asking that the county attorney be not permitted to question the witness as to said matters. To this objection, the county attorney answered that whatever discussion had preceded the calling of this witness had been in the absence of the defendant; that ho record thereof had been had; that he believed the testimony admissible; and he asked permission of the court to propound questions for the purpose of making such record as would enable him to present the question of the admissibility of the evidence to the Supreme Court npon appeal.

Permission to do so was granted by the court, and the following questions were asked and objected to by the attorneys for defendant, upon the ground that same were incompetent, immaterial, irrelevant, and that the mere asking thereof was prejudicial to the defendant:

“Q. Do you recall anything happening, or him attempting to do anything to you down there, Jean?

“Q. What is the fact, Jean, as to him ever attempting to feel your legs or otherwise while you was in the post office? Now don’t answer the question until after the ruling of the court.

“Q. Did he ever try to do anything to you down there in the post office?”

It is contended by counsel for the defendant that the county attorney, in calling the witness and asking the above questions, with knowledge that answers thereto would not be received over the defendant’s objections, was guilty of such misconduct on his part as to require a reversal of this case. If the testimony sought was admissible, then the county attorney would be guilty of misconduct, if at all, only upon the theory that the previous announcement of the court had settled the law of the case, and the county attorney should have avoided further reference to the matters complained of.

In State v. Blydenburg, 135 Iowa 264, the court held the repeated attempts of counsel for the State to offer certain evidence, after the court had held the same inadmissible, misconduct. In that case, however, emphasis was given to the fact that a full record of the offer of the testimony had been made, and counsel was persisting in offering same over the rulings of the court. In the case at bar, the county attorney was granted permission by the court to call and propound questions to the witness, for the purpose of making a record of the offer, and the rulings of the court. If the offered testimony in this case was inadmissible, the prejudicial character of the questions propounded to the witness and the indicated character of the testimony sought could not have been otherwise than prejudicial to defendant.

It is argued on behalf of the State that the offered testimony comes within one of the well-known exceptions to the general rule excluding testimony of other similar offenses, and that same was admissible for the purpose of showing the intent with which the defendant did the acts charged in the indictment. There is a certain class of offenses in which the intent with which the act is performed is an essential issue, and the burden of proving the same rests upon the State, and evidence of similar offenses under certain restrictions is admissible. This rule is -illustrated in cases where forgery, uttering forged instruments or passing counterfeit money, cheating by false pretenses, embezzlement, receiving stolen property, and numerous other offenses are charged, in which the intent with which the act was done might have been entirely innocent. State v. O’Connell, 144 Iowa 559; State v. Desmond, 109 Iowa 72; State v. Sheets, 127 Iowa 73; State v. Stice, 88 Iowa 27; State v. Vance, 119 Iowa 685. Such evidence is not admissible under the general rule in cases where the intent may be inferred from the nature of the act charged.

The New York Court of Appeals, in People v. Molineux, 168 N. Y. 264 (61 N. E. 286), said:

“There are cases in which the intent may be inferred from the nature of the act. There are others where willful intent or guilty knowledge must be proved before a conviction can be had. Familiar illustrations of the latter rule are to .be found in cases of passing counterfeit money, forgery, receiving stolen property, and obtaining money under false pretenses. An innocent man may, in a single instance, pass a counterfeit coin or bill. Therefore, intent is of the essence of the crime, and previous offenses of a similar character by the same person may be proved to show intent.”

See, also, People v. Lonsdale, 122 Mich. 388 (81 N. W. 277) ; State v. Spray, 174 Mo. 569 (74 S. W. 846). The offense charged in State v. Stice, supra, was clearly one in which the act might have been an accident, or committed without the thought of violating the statute in the respect charged. The burden, therefore, rested upon the State to prove the intent. In State v. Sheets, supra, the court based its holding upon the theory that, as the several like offenses of which evidence was received were committed upon the same occasion, each immediately following the other, the evidence was admissible, under the rule stated in State v. Rolinson, 170 Iowa 267, as follows:

“The general rule is that the State is not permitted, in its efforts to establish the crime charged, to introduce evidence of another substantive offense; but the rule is that, where the acts are. all so closely related in point of time and place, and so intimately associated with each other, that they form one continuous transaction, the whole transaction may be shown, what immediately preceded and what immediately followed the act complained of, for the purpose of showing the scienter or quo animo of the party charged. * * * Distinct, independent, substantive offenses, not related to the one charged, committed at different times or different places, cannot be shown against the defendant; but not so when the time, the place, the circumstances, and the parties, all have some relation to and are directly involved in the act charged, at the time of its commission or immediately before or after; and we think this is the doctrine of the cases cited.”

The evidence of Mildred was that, when she went to the post office, where the defendant was, at the time, working, to post a letter, he took her in the rear of said post office, placed her upon a bench, unloosened his own and her clothing, and proceeded so far in an effort to have sexual connection with her that she was sore for two or three days. It will be observed that the statute defines the offense as “lewd, immoral or lascivious act upon or with the body or any part or member thereof, of a child of the age of thirteen years, or under, Avith the intent,” etc. The acts described by witness were lewd, immoral, lascivious. Defendant sustained no relationship toward Mildred from which an innocent intent upon his part could possibly be drawn. No possible explanation consonant therewith could be offered. The act was of such an immoral, lascivious, and indecent character as to conclusively show the debased and licentious condition of defendant’s mind. From the facts shown, not only is the intent defined by the statute inferable, but every other intention is necessarily excluded. The intent Avas inherent in the-act itself, and could not have been an issue requiring other evidence to establish. The evidence offered Avas clearly inadmissible.

2. Criminal law: trial: conduct of counsel: offer of irrelevant and inflammatory evidence. This brings us to the question Avhether the county attorney was guilty of prejudicial misconduct in propounding the above interrogatories. Certain latitude must be allowed . . a prosecutor m the introduction ot the State’s testimony, and ordinarily prejudicial error would not result from merely asking questions seeking to elicit irrelevant matter. The testimony sought to be elicited was irrelevant, and the interrogatories propounded to the witness carried with them the suggestion that defendant had committed a like offense , at some other time upon the witness, or had been guilty of some serious immoral conduct toward her. Under the statute, the offense can only be committed upon children under thirteen years of age, and its revolting character is well calculated to inflame the passion and arouse the prejudice of a jury against any person of adult years accused of such indecent conduct with a child of tender years; and the effect of the question upon the accused was necessarily prejudicial.

The record discloses that the witness was sworn, and the questions propounded in the usual manner, — that is, in the presence of the court and jury; and the questions were propounded after the court had declared to the county attorney that the evidence sought thereby would not be admitted.

The duty of the prosecuting attorney is not alone to secure a conviction of the guilty, whenever possible, but also to safeguard the rights of the accused, by closely observing the rules of evidence and prescribed procedure. While the questions were propounded with the permission of the court, upon the theory that the State should have an opportunity to make a proper record for appeal, still, on account of the character of the offense which it was claimed had been committed against the witness, and suggested by the line of questioning indicated, coupled with the fact that same wa$ clearly inadmissible, we think same was rendered highly prejudicial to the rights of the defendant, and that it was misconduct on the part of the prosecutor to call the witness and pursue the line of questioning indicated. State v. Blydenburg, supra; State v. Roscum, 119 Iowa 330; Hammer v. Janowitz, 131 Iowa 20; State v. Greenland, 125 Iowa 141; State v. Moon, 167 Iowa 26. While the right of appeal on the part of the State is doubtless a valuable one, the effect of an appeal in this case would only have been to settle a rule of evidence in no wise affecting the defendant. The right of the State to obtain a decision of the appellate court upon a- mooted question of law was not paramount to the right of the defendant to have a fair trial, without regard to the character of the offense charged.

' Other alleged errors are argued by counsel for appellant which are not likely to occur upon a retrial of this case, and we need not consider them herein. For the reasons pointed out, this cause is — Reversed.

Weaver, Gaynor, and Salinger, JJ., concur.