63 Iowa 554 | Iowa | 1884
II. The third and fourth paragraphs of the charge are as follows:
2. -: lewd cohabitation: pacts not constituting: evidence to establish. “3. The burden of the offense is the open, lewd, lascivious conduct of the parties living together as husband and wife. It is the Publicity and disgrace, the demoralizing and debasing influence, that the law is designed to Prevent If> therefore, you find from the evidence'in this case that the defendant and said Collins lived together in the same house, in the relation of master and servant, and not as husband and wife, and that they only had occasional acts of sexual intercourse, and these in a secret manner, such facts alone would not be sufficient to constitute the crime charged against defendant in this case.
“d. But the crime charged may be shown by circumstances, in connection with the other evidence in the case, if*557 such circumstances are sufficient in connection with such other evidence to satisfy you beyond a reasonable doubt that the crime has been committed, as charged in the indictment, under these instructions; and, in determining whether said parties were or were not living together as husband and wife, it is proper for you to consider any and all acts of sexual intercourse, if any have been shown by the evidence; the fact, if you find it to be a fact, that a child was born to said Collins while she was living with defendant; and all other facts and circumstances disclosed by the evidence as surrounding the parties while living together.”
The third instruction is objected to on the grounds that it is argumentative, and in the nature of a lecture on morals, and assumes the condition upon which the defendant and Mary J. Collins lived and cohabited together. In this we do not concur. The instruction as a whole is favorable to the defendant, and the legal proposition announced in terse and proper language. The objections of counsel are without merit, and this is clearly demonstrated by a simple reading of the instruction. The fourth instruction is also objected to because it “assumes that there was other evidence given in this case outside of circumstantial.” From the argument of counsel we infer that he means that it was improper to call attention to the birth of a child and acts of sexual intercourse, which were established by positive evidence, because neither has any tendency to prove the relation existing between the parties. It is sufficient at present to say that we do not concur in this proposition. The instruction is further objected to because it conflicts with The State v. Marvin, 12 Iowa, 499. The third instruction is evidently based on that case, and is in accord therewith; and we are unable to see that there is any conflict between them.
IY. What has been said sufficiently indicates that the court did not err in refusing the instructions asked. Eor the most part they are fully covered by those given by the court.
the “sole judges of the credibility of the witnesses, and of the weight to be given to their testimony.” We cannot say that the court erred in failing to say more than it did. This case is clearly distinguishable from The State v. Brainard, 25 Iowa, 572. The impeachment of the witnesses did not constitute a defense, but its only effect was to lessen their credibility. The issue and defense were clearly and fully stated to the jury, and the failure of the court claimed by counsel should not, in this case, we think, constitute reversible error.
Certain rulings of the court in admitting evidence are assigned as error, and counsel in a general way insist on them
Affirmed.