130 Iowa 145 | Iowa | 1906
The plaintiff alleged that defendant seduced her on the 12th day of April, 1903, and that, as a result, she was delivered of a child Jannary 14, 1904. The evidence shows, without controversy, that he had met her with increasing frequency since May, 1901, and that they were together in the evening of the day first mentioned, but he denied ever having-had intercourse with her. The-errors assigned relate to rulings on the admissibility of evidence and the instructions to the jury. These will be disposed of in the order argued.
*148 Q. Suppose that in any given case, where the woman is of average height and build, will say from one hundred to one hundred and sixty pounds, and the man is fully developed, a husky boy weighing from one hundred and sixty-five to one hundred and eighty pounds, and of usual height, and under circumstances like that where the act of intercourse took place in a top buggy and the top was up, and this was the first intercourse, what would you say as to the probability or improbability of conception following such act of intercourse?
Over objection that this was not the subject of expert testimony, he was permitted to answer: “ I think it is very unlikely.” The ruling was erroneous. The inquiry related to nothing connected with medical science, save what had already been detailed and the witness had not disclosed special knowledge with respect to like situations. The matter was not the subject of expert testimony. State v. Peterson, 110 Iowa, 641. A like objection was lodged against a question as to whether pregnancy would be likely to result from the first intercourse of a woman. It was properly overruled.
Sterchi had not been called as a witness and we are at a loss to understand upon what theory the evidence was received. Appellee suggested, in support of the ruling, that as Sterchi was subsequently called as a witness, this evidence, as well as that of Hunt, who was allowed to testify that Sterchi had consulted him concerning a proposed abortion on plaintiff, and also Sterchi’s account of his interviews with these men was admissible as tending to sustain his credibility as a witness. No attempt to impeach him, save by emphasizing the improbability of his story by cross-examination, was made. He was not shown to have made contradictory statements, and even if he had evidence of consistent statements has always been excluded in this State save in exceptional cases. State v. Cruise, 19 Iowa, 312; State v. Vincent, 24 Iowa, 570; Boyd v. First National Bank, 25 Iowa, 255; Green v. Cochran, 43 Iowa, 544.
These exceptions are pointed out in the above decisions and especially in State v. Vincent where they are enumerated : “ If the witness is charged with a design to misrepresent, on account of his changed relation to the parties or the cause, evidence of like statements before such change of relation may be admitted; so, if it is attempted to be shown that the evidence is a recent fabrication, or when long silence concerning an injury is construed against the injured party, as in cases of an indictment for rape, in such cases it is proper to show that the witness, made similar statements soon after the transaction in question.” The exceptions are sometimes said to include all cases where the record is such as tends to charge the witness with having given testimony under the influence of some motive which might prompt him to make false or colored statements. Barkly v. Cope
It is not enough that the party tendering such evidence suspects that the other side may argue to the jury that the facts are such as bring the case within one of these exceptional situations. The ground to take the case out of the general rule and authorize the admission of consistent statements must clearly appear in the record. Ætna, Ins. Co. v. Eastman, 95 Tex. 34 (64 S. W. 863) ; Martin v. State, 119 Ala. 1 (25 South. 255).
Nothing in the record before us brings it within any of the exceptions. ' True the witness was asked on cross-examination what he was to receive for coming from Minnesota to testify and answered that he was to have his expenses, and such wages as he would have earned had he not come, paid him. He could not have been compelled to attend from another State, and no argument is needed to sustain the proposition that for a witness to receive fair compensation for his time and expenses, under these circumstances, was not corrupt. The evidence should have been excluded.
Because of the errors pointed out, the judgment is reversed.