State v. Johnson

Oct 4, 1893
Reporters:
,
Before:
Robinson
Robinson, C. J.

’ complaint: quash: waívI. The complaint is made by Sarah Christenson, and states that she is, and has been foT more than fifteen years, a resident of Winneshiek county, in this state: that gfre ig pregnant with a child, which, if born alive, will be a bastard, and, if living, liable to become a charge upon the county; that the defendant is the father of the child, and has so fаr failed to provide means for her support. The defendant filed a motion to quash the complаint, which was overruled, and he now insists that the ruling was erroneous. Whether it‘was or not we are not required to dеtermine. Although this is a proceeding conducted in the name of the state, on complaint filed, the issue *3in which, is guilty or not guilty, yet it is tried as an ordinary action to establish a civil liability, ‍​​​‌‌‌​‌​​‌‌‌‌‌​‌‌​​​‌‌​​‌‌‌​​​​‌​‌​​​‌​‌​‌‌​‌​‌‍and when not otherwise provided, thе rules applicable to such actions govern. Code, section 4720; McAndrew v. Madison Co., 67 Iowa, 54; State v. Severson, 78 Iowa, 653. After the motion was overruled, the defendant pleaded not guilty, and went to trial on the merits, thereby waiving his right to object further to the ruling.

2_ ; evidence: tfonswueha” other men. II. The prosecutrix is unmarried, and at the time of the trial was the mother of a child. She testified that she had sexual interсourse with the defendant on the night of August 10, 1890, at which time the child was begotten, and that the defendant is its father. Helgе Gunderson, who testified as a witness for the defendant was asked the following question: “How many times have you hаd sexual intercourse with Sarah!” An objection to the question was sustained, ‍​​​‌‌‌​‌​​‌‌‌‌‌​‌‌​​​‌‌​​‌‌‌​​​​‌​‌​​​‌​‌​‌‌​‌​‌‍and of that ruling the defendant cоmplains. We think it was correct. The question was not proper for the purpose of impeaсhment, for the reason that it was too general in its scope, and no foundation therefor had been laid by questions asked of the prosecutrix. It was immaterial for the reason that, if it were true that she had bеen guilty of sexual intercourse with the witness at different times, that fact would not constitute a defense to this аction. State v. Lavin, 80 Iowa, 562. It is not claimed that she had sexual intercourse with him at the time the child was conceived.

3’ Wness®0iactsS over oo e . III. A witness named Folsoss, who had testified for the plaintiff, was recalled after the defendant rested, and permitted, over the objection of the defendant, to testify to facts which might kave peen ‍​​​‌‌‌​‌​​‌‌‌‌‌​‌‌​​​‌‌​​‌‌‌​​​​‌​‌​​​‌​‌​‌‌​‌​‌‍proven by the plaintiff when offering its evidence in chief. The defendant insists that his objection should have been sustained. It was рroper for the state to recall a witness to testify to facts *4which had been overlooked оn his first examination, and that appears to be what was done in this case. We can not say that there was any abuse by the’ court of its discretion in permitting the witness to be recalled and examined further. Had the defendant wished an opportunity to dispute the testimony given by the witness when recalled, he would have bеen entitled to it, but he did not ask for it, and has no sufficient reason to complain of what was done.

■4__. question d“ÍcTto sTpi port verdict. IY. The сhief ground upon which the defendant relies for a reversal of the judgment of the district court is that the verdiсt is not supported by the evidence. It is shown that the prosecuting witness sometimes went about the neighborhood of her home dressed in-boy’s clothes; that she treated young men to liquor; that in the year 1890 she frequently slept with different men, several of whom are named; that during the first part of the night- of August 10, 1890, she occupied her bed with one Tom Myron, and during the latter part.of the night she occupied it with the defendant. She testifies that she did not h,ave sexual intercourse with any’ of those men, excepting the defendant; that the others did not remоve their clothing, ‍​​​‌‌‌​‌​​‌‌‌‌‌​‌‌​​​‌‌​​‌‌‌​​​​‌​‌​​​‌​‌​‌‌​‌​‌‍and were not in the bed, but on it; that what they did was according to a usage of young-people of her nationality, called in the record “bundling,” and was not for the purpose of, and did not leаd to, sexual intercourse. Her testimony in regard to what occurred the night- of August 10, is not contradicted in any material respect by any witness. It must be admitted that her claim that she had never had sexual intercourse with any one, excepting defendant, in view of her admissions, is at least improbable, for obvious reasons, but we can not say that it is not supported by the evidence. She testified in a frank, straightforward manner, without any аpparent attempt at evasion, and it was the province of the jury, and *5peculiarly within their power, to estimate her credibility and weigh her testimony. The fact that her conduct with others has been unchаste and indecent is not a defense for the defendant. The material question to be determined is not ‘“what is the character of the prosecutrix?” but “is defendant the father of her child?” The jury found that he is, and the distriсt court, which saw the witnesses and heard the evidence, was of the opinion that the verdict had sufficiеnt support in the evidence. “We are of the opinion that it was so far authorized by the evidence that we should not disturb it.

Y. The appellant complains of the overruling of his motion for a new trial. The motiоn was based in part upon newly-discovered evidence, upon misconduct of the jury, and upon the absence of ‍​​​‌‌‌​‌​​‌‌‌‌‌​‌‌​​​‌‌​​‌‌‌​​​​‌​‌​​​‌​‌​‌‌​‌​‌‍a witness who had been subpoenaed, but who did not attend the trial. Little is said in argument on this branсh of the case, and we need only say that we. think” the ruling was correct.

We discover no ground for reversing the judgment of the district court. It is, therefore, affirmed.