State v. Drake

Oct 18, 1905
Reporters:
,
Before:
Weaver
Weaver, J.

i. Examinawitnesses: questions. I. It is first argued that the trial court erred to the defendant’s prejudice in permitting the prosecuting .witness to answer leading questions propounded by the county attorney, and in sustaining the State’s objection to other leading questions propounded by defendant’s counsel to witnesses testifying in his behalf. The admission and exclusion of answers to leading questions are matters peculiarly within the discretion of the trial court, and it is only upon a clear showing of abuse of such discretion that the ruling will be held reversible error. Without attempting to set out the record presented in this case, we have to say that we find no evidence of any abuse of discretion by the district court.

The propriety ‍​​​​​‌​​‌​​​​‌‌​‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​​​‌‌​​​‌​‌​​​​​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌‌‍of admitting leading questions depends largely upon the witness under, examination. If he or she is young or inexperienced, or laboring under evident timidity or embarrassment, or is apparently lacking in intelligent comprehension of the questions propounded, or is unwilling or evasive in giving the information sought, it is entirely proper to allow interrogatories of this character. On the other hand, the court may well sustain objection to the same questions to a witness in whom none of these characteristics appear. Manifestly the trial court can note these varying circumstances with far greater accuracy and discrimination than we can possibly do in an examination of the written record, and we should be very slow to interfere with its rulings in reference thereto.

*5412. reprimand of comisEL *540Complaint is also made that the court unnecessarily and improperly rebuked defendant’s counsel in the .presence of the jury for his persistence in leading his witnesses in spite of repeated adverse rulings. We cannot from the record *541before us say the censure was unmerited. It is the undoubted right of Counsel to put to a witness such questions as in good faith he may believe admissible, and to have a proper record preserved of his exceptions to adverse rulings. But, when a ruling has once been made and record secured, it is the duty of counsel to submit and seek his remedy by the orderly methods of appeal. If he is unwilling to do so, and persists in attempting ‍​​​​​‌​​‌​​​​‌‌​‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​​​‌‌​​​‌​‌​​​​​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌‌‍to override the rulings against him, he is in no position to complain if his conduct calls forth the expressed disapprobation of the court. In the present case the court went no further than to warn counsel that upon further provocation of this nature he would not be allowed to proceed with thp examination of the witness. The reprimand was by no means severe, and however irritating it may have been to the temper of the counsel it is impossible to believe that the interests of his client were therebyprejudiced.

3. argument. II. The appellant charges the prosecuting attorney with misconduct in his argument to the jury, but we think the complaint is without substantial, merit. The prosecutor’s address was sprinkled somewhat profusely with terms of denunciation, which could have been omitted without ..detracting from the logic of his argument; but it is not every indulgence in lurid argument on- part of counsel which will afford ground for granting a new trial. Were it otherwise few convictions would stand the test of appeal. Beyond- insisting that counsel must keep fairly within the record and abstain from inflammatory appeals to passion and prejudice, the court will not attempt to control the manner and method of his argument- to the jury. The prosecutor did not transgress the limits here recognized, and the exception taken by the appellant is not well founded.

*5424. seduction evidence *541III. The only other question argued by counsel is the-sufficiency of the evidence to ‍​​​​​‌​​‌​​​​‌‌​‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​​​‌‌​​​‌​‌​​​​​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌‌‍sustain the verdict of the jury. It is said that, even if it be conceded that defendant is the father of the child of the prosecuting witness, there is no *542evidence that the intercourse was obtained by him through the use of seductive arts or promises. The record does not sustain this contention. The testimony tends show that at the time of the alleged seduction the prosecutrix was about 1Y or 18 years of age, and that from the time she was 15 years old the appellant was waiting upon her, taking her out to ride, accompanying her to social meetings, and otherwise manifesting for her more than ordinary regard and affection. He had also mentioned the subject of their marriage and the consent of her parents to their union. If the” jury believed the State’s witnesses, as they had a right to do, there is abundant ground for the conclusion that appellant led the prosecutrix to believe that he desired and intended to marry her, and that it was through these arts and promises, express and implied, that she yielded to his desire. The corroborating testimony was also sufficient. The facts shown are quite parallel to those appearing in State v. Lauderbeck, 96 Iowa, 259, in which a conviction was sustained.

s. previous acter? tur* evidence. ’ In further support of his defense tire appellant made a determined effort to prove that at the time of the alleged seduction the prosecutrix was already of unchaste ‍​​​​​‌​​‌​​​​‌‌​‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​​​‌‌​​​‌​‌​​​​​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌‌‍character, And indeed, if the defendant and his witnesses are to be believed, this immature girl was, and for a long time had been, a harlot of the most astonishing vileness and depravity. Women were produced ■to testify to words and acts upon her part indicating an utter absence of any sense of virtue or decency, while several young men with evident pride in the achievement told the jury of their alleged admission to her embraces.

In the very nature of tilings even a virtuous woman, whose character is thus assailed, is sometimes able to do no more than deny the specific shameful acts with which she is charged and offer proof of her good reputation among the decent and orderly members of the community where she resides and is best known. This the prosecutrix did, and it *543is not at all surprising that the jury should have accepted the truth of the showing thus made by her. The burden was upon the appellant to overcome the legal presumption of her prior chastity, and this he was required to do by testimony upon which the jury could rely as credible. The women who •appeared as witnesses against the prosecutrix materially weakened the effect of their own testimony by the very extrava.gance of their statements, and by their admission that with full knowledge of the extraordinary depravity which they imputed to her she was freely admitted to their homes and their social favor up to ‍​​​​​‌​​‌​​​​‌‌​‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​​​‌‌​​​‌​‌​​​​​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌‌‍the time of the commencement of this prosecution. It may also be remarked, with reference to the male witnesses above referred to, that so long 51s juries are made up of men possessing normal moral and intellectual ■qualities, they will rarely allow the presumption of virtue in woman to be overcome by the testimony of any number of witnesses whose story, whether true or false, is a confession of their own infamy. All the witnesses were before the jury, and it was for the latter to determine their credibility and the weight ‘and influence which should be accorded to their several statements upon the stand.

The verdict is not without adequate support, and the judgment appealed from must be and it is affirmed.