90 Iowa 534 | Iowa | 1894
I. The indictment charged the defendant with having committed the crime of adultery by having carnal knowledge of a woman whose name was unknown to the grand jury, and who was over eighteen years of age. It contained other necessary averments. It is urged that the evidence does not support the verdict. The record discloses without conflict that defendant was a married man at the time the crime is alleged to have been committed; that his wife was the prosecuting witness before the grand jury and on the trial in the court below. The testimony shows: That two ladies called on the defendant at his hotel on June 26, 1892, in Deborah. That defendant and the ladies took supper together, and all left the hotel. That defendant did not appear there again until the next morning. That defendant and one Oleson met two ladies that evening at the railroad depot. That defendant and his companion thereafter left the women, and went to the hotel for a short time. That defendant and Oleson then went to two rooms in Steger’s building. These rooms had no door between them, — simply an opening. That these two women came into these rooms, and that defendant occupied one of the rooms most of the night, and one of the women was in his room, and stayed there six or eight hours. That there was a bed in the room -defendant w;as in. That about four o’clock in the morning defendant went into the room occupied by Oleson and the other woman, and insisted upon her coming to his room, and she refused, and he threatened to have her arrested if she did not accede to his wishes. Defendant then went out of the room, and, after he had gone, the woman who had been with him in his room
II. Error is assigned because the court, in its instructions, did not charge the jury that it was incumbent on the state to prove that the woman with whom the sexual intercourse was had, if any, was over eighteen years of age. It is alleged in the indictment that she was over eighteen years of age. It is conceded that the allegation was unnecessary, but it is claimed that, being averred, it must be proven. It has been held in this state that an unnecessary averment in an indict-mept may be treated as surplusage if, without it, the allegations are sufficient to charge the offense. State v. Finan, 10 Iowa, 19; State v. Schilling, 14 Iowa, 455; State v. Ansaleme, 15 Iowa, 44; Town of Eldora v. Burlingame, 62 Iowa, 32, 17 N. W. Rep. 148; State v. Ormiston, 66 Iowa, 143, 23 N. W. Rep. 370; State v. Goode, 68 Iowa, 593, 27 N. W. Rep. 772. Nor was it necessary to set out in the indictment the name of the woman with whom defendant had connection. In
III. Error is assigned on account of the misconduct of the county attorney. In opening the case the county attorney stated to the jury that he expected to “prove that the defendant was arrested for'seduction on the day he was married, and that on that day he took his wife to her father, and bid her good bye, and left her to take care of her babe and herself.” He asked the prosecuting witness: “State whether, on or about the fifteenth of March, 1892, and before you were married to him, you had your husband arrested for seducing you.” “State whether the defendant left you on the day you married him, and has since absented himself from you.” To these questions objections were sustained. That the* statement and questions were highly improper every lawyer must know. To presume that the county attorney supposed or believed them legitimate is to hold him unfitted for the position he was occupying. If there was any reasonable doubt in our minds as to the defendant’s guilt, we should promptly reverse this case for these attempts to inject into the case matters which the county attorney must have known were improper. We have often had occasion to comment adversely upon similar conduct, and wish it understood that such conduct merits condemnation. It would have been proper for the trial judge to have warned the jury to avoid being influenced by these outside and improper matters. There could have been no other object in offering this testimony than to
IY. Other errors are assigned. We have considered them, and discover no prejudicial error. Afeirmed .