159 Iowa 351 | Iowa | 1913
Numerous matters are urged and relied upon for a reversal. Those most strongly argued are in reference to the alleged misconduct of the county attorney and the sufficiency of the evidence, particularly as to1 whether the jury were justified in finding prosecutrix to have been of chaste character at the time of the alleged seduction. It is said the court erred in permitting the prosecutor on cross-examination of defendant’s witnesses to put improper question’s and to make insinuating remarks reflecting on witnesses and defendant, and that the prosecutor made improper
The same rule applies where the trial court has overruled a motion for new trial on the ground of alleged misconduct in argument. One of the statements of the prosecutor of which complaint is made was in ansAver to argument of counsel for defendant. In referring to the testimony of defendant’s witnesses, who had testified to their having had sexual-intercourse with prosecutrix, the prosecutor said: ‘ ‘T tell you Avhat the Supreme Court of Iowa thinks about such a fellow. The Supreme Court says that, so long as juries are made up of men possessing normal, moral, and intellectual qualities, they will rarely let the presumption of virtue in women be overcome by the testimony, of any number of witnesses whose story, whether true or false, is a confession of their own infamy. (Defendant objects to that as being prejudicial and incompetent. Court: Yes, I think that is improper and the jury will not regard it. The ruling of the court is excepted to.) I speak to you now as normal men, morally and intel
It is presumed the jury obeyed the direction of the court to disregard the statement of the county attorney. It is claimed by counsel for the appellant that juries give weight to an intimation from the court, but this court did not make the remark quoted to the jury. Furthermore, it is doubtful whether a jury could be found who would not feel the same way about it without being told.
The statement of the prosecutor after the court had sustained -the objection to the quotation was not iii itself improper, and it is not made so by the fact that the county attorney addressed the jurors as normal men, morally and intellectually. He simply left it to the jury to say what weight should be given to the evidence of such witnesses. From matters appearing in the record and arguments in this court, we assume that the prosecutrix ivas not spared by counsel for defendant in their arguments to the jury. The trial judge heard all the arguments, and all that was said and done at the trial. He seems to have been fair and entirely impartial. In overruling the motion for new trial, it was his judgment that no prejudice had resulted. We would not be justified in reversing on these grounds.
(10) If you find that the prosecuting witness prior to and about the time- of her alleged seduction had sexual intercourse with others than the defendant, then she was not of chaste character.
(11) In order for the prosecuting witness to have been of unchaste character prior to her alleged seduction, it is not necessary for her to have had sexual intercourse prior to that time. If she prior to such alleged seduction was unchaste in thought, action, heart, and mind, that would be sufficient to render her of unchaste character. If she was guilty of undue familiarity with men, if her demeanor and conduct was vulgar or improper, these facts should be considered by the jury in connection with all the other facts and circumstances in evidence bearing on the question in determining whether at the time of her alleged seduction she was, in fact, of chaste character. No particular amount or degree of such conduct or association can be set down as conclusive evidence of unchaste character, nor is it every act of impropriety, indiscretion, or even indecency that will make a woman of unchaste character, but the jury must determine from all the facts shown and bearing upon the question whether she was of chaste or nnchaste character, bearing in mind that the question is what was her character for chastity prior to her alleged seduction, not what it may have been since.
(12) If you find by the greater weight or preponderance of the evidence that prior to the time of her alleged*360 seduction the prosecuting witness had indulged in sexual intercourse with the defendant, she was not then of chaste character, unless such prior intercourse had occurred such a length of time before and their relations had been so absolutely broken off for such a length of time, and her conduct in the meantime had been such as to satisfy you that she had reformed, and was at the time of her alleged seduction a woman of chaste character.
(13) If you find by the greater weight or preponderance of the evidence that at the time of her alleged seduction by the defendant, if she was so seduced, she was not a woman of previous chaste character, you should acquit the defendant.
The objection to the instructions on this subject, as we understand it, is that the defense claims that the date of the River Hill act of sexual intercourse was fixed by the defendant as the last of June; that there was a conflict between the defendant and prosecutrix as to the correct date, and that the instruction closed the door against all testimony of defendant to acts of unehastity after the 18th or the last of May, and that the defendant had the right to have the jury determine which was the true date of the intercourse alleged as seduction, and that, if the jury found the date fixed by defendant was correct, then the defendant was entitled to have them consider all the evidence of unchaste character prior to that date; that a part of such conduct was the swimming transaction. From the evidence which we have pointed out it seems to us that it cannot be claimed that the swimming transaction occurred before the alleged seduction. But, in any event, no such interpretation can fairly be placed upon the instruction as is claimed by the defense. The court used the words: “If she, prior to her alleged seduction, was unchaste,” etc. “If you find that the prosecuting witness prior to and about the time of her alleged seduction had sexual intercourse with others,” etc. “If you find by the greater weight or preponderance of the evidence that at the time of her alleged seduction she was not a woman of previous chaste character, you should acquit the defendant.” Counsel for defendant
Instructions 7 and 9, asked by the defendant, are covered by instructions given by the court. No. 9 correctly states the law, and is not in conflict with 2 and 3.
Instruction 12 has reference to testimony of the defendant that he had intercourse with the prosecutrix in 1907, some nine months before the alleged seduction in 1908, and was a proper instruction in connection with the other instructions herein quoted. Prosecutrix denied having had intercourse with defendant in 1907.
The instructions are full, fair, and correct, and the appel-' lant has no just cause of complaint. We have referred to all matters complained of which are of sufficient importance to notice.