12 Iowa 499 | Iowa | 1861
The attorney for the State filed a motion for a separate trial in the District Court, based upon the ground that one Gormet, (the husband of the defendant, Lucy Stone,) was the principal witness for the State. The sustaining of this motion is the first error assigned.
Section 4789 provides, that where two or more defendants are jointly indicted for a felony, any defendant requiring it, may be tried separately. In other cases defendants jointly indicted may be tried jointly, or separately, in the discretion of the court.
This case of defendant falls within the class of causes provided for in the latter part of this section, as the crime with which he was charged is but a misdemeanor.
The argument of appellant is, that the State having elected to indict the defendants jointly, it is therefore bound by such election; and that the application for a separate trial can be made but by the defendant. We can not concur in this construction of the statute. The wording of the statute renders the intention of the legislature very obvious-Defendants jointly indicted for a misdemeanor may be tried separately or jointly as the court in its discretion may direct. The State as well as the defendant, under the latter part of this section may ask for and obtain a separate trial.
Did the court abuse its discretion in granting the State a separate trial ? We think not. The witness Gormet, sub
The second error assigned is, that the court did not allow to defendant “ three clear days ” between the verdict of the jury and the rendition of the judgment. This error does not affirmatively appear from the record. It appears that the verdict of the jury was rendered on the 3d day of the month, and the judgment pronounced on the 5th. It also appears that the bill of acceptions was signed in upon court upon the 6th. The court is required to allow three clear days to intervene only in case the term is likely to continue long enough to justify this extention.
The record fails to show that the term continued three clear days after the verdict of the jury. Olear days, as here used, are days exclusive of the day the verdict was rendered and the day upon which judgment should be pronounced.
In the absence of any showing to the contrary we are to presume that the court deferred its judgment to as remote a period as it reasonably could.
The object of this provision of the law is evidently to give the defendant ample time to prepare his application for a new trial. The defendant does not even claim that he was in any manner prejudiced by this action of the court. On the contrary, it appears that his motion for a new trial was made and passed upon by the court.
The third point made by the counsel for appellant is, that the verdict was against the evidence, and that a new trial should have been granted for this reason. The charge in
The second, Frederick Grormet, the husband of the said Lucy, testified that the defendant and Lucy lived together as a hired girl to a man; that he had lived with defendant several months; there were but two beds in the house, he and his brother slept in one bed and Lucy in the other and the defendant slept on the floor. He saw the defendant get out of the bed with Lucy only twice, and that was when it was so cold he could not sleep upon the floor. This was all the evidence introduced.
Is this evidence sufficient to sustain the indictment ? The testimony of Wright, when properly divested of its irrelevancy, proves nothing. In fact, upon his cross-examination it is made to appear that he knew nothing, and that his suggestion to the defendant as to the manner they were
Bishop, in his work on Criminal Law, in referring to statutes of the different States upon the subject of lewdness, says : “ When the words were, ‘shall lewdly and laciviously associate together,’ the cohabitation meant, was held to be, not merely incontinence in a single instance, but a dwelling or living together by the parties, the design of the enactment being, in the language of the court, ‘ to prevent evil and indecent examples tending to corrupt the public morals.” “ Therefore, also, under a statute like the one last mentioned, something more must be shown than mere private incontinence, continued to however great a degree.” To constitute “ living together in adultery or fornication, something more than mere occasional acts of private intercourse is required.” In the case of Searls v. The People, 13 Illinois 597, the Supreme Court- reversed the judgment of the court below, for the reason that the following instruction was given, to-wit: “ That in order to constitute this offense, even one act of sexual intercourse need not be proved by positive testimony, but that the offense is sufficiently proved by any circumstances which raise the presumption of unlawful intimacy and sexual and adulterous intercourse.”
The court in their opinion say, “ that in order to constitue this crime, the parties must dwell together openly and notori
In the case of the Commonwealth v. Gatlin, 1 Mass, when the defendant was indicted for open, gross lewdness and lacivious behavior, and when the evidence tended to show improper conduct on the part of defendant, the court were of the unanimous opinion, that although the facts proved amounted to an offense, yet they did not prove the offense as charged in the indictment. “ Admitting ” they say, “everything which has been testified to be true, there is certainly nothing more proved than secret or private lewdness and lacivious behavior, which can not in any degree support the the indictment.”
So also, in the case of The Commonwealth v. Calef, in which the defendant was indicted for unlawfully and laciv-iously associating and cohabiting with one Emily Kimball, in which it was admitted that one act of criminal intercourse as chai’ged, could be proved.
The court say, “ by cohabiting must be understood a dwelling or living together, not a transient and single unlawful interview. The design of the statute in this particular provision was, to prevent evil and indecent examples tending to cof-rupt the public moral. Perhaps an indictment for the crime of adultry might have been maintained by the evidence stated, but on the present indictment, the defendant could not be convicted.”
Applying the rule, as appears to be well settled from the foregoing authorities, to this case the circumstances as re
The defendant and Lucy according to the testimony of the State, wore living together in the same house in the relation of master and servant, not as husband and wife. Secret acts of intercourse would not make them liable. The burden of the offense is the open, lewd, lacivious conduct of 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.
The State fails to show any lacivious or indecent conduct except it is the fact of defendant’s twice leaving the bed of Lucy. Whether this was in the night or in the morning, whether it was done openly or secretly, the evidence fails to show. Believing that the State has failed by the evidence, as certified to us, to establish the defendants guilt as charged in the indictment, the judgment is reversed and a new trial awarded.