81 Iowa 72 | Iowa | 1890
I. The defendant Unger is a married woman, but not the wife of her codefendant, Miller. The testimony shows that she was absent from the home of her husband much of the time specified in the indictment, and at the home of Miller, doing work in and about his house, as would a housewife; and in many respects they lived together as would husband and wife. As to unlawful intercourse, there is testimony tending in some degree to show it; and the county attorney, with a view to more fully establish the facts, sought to prove statements of one of the defendants made in the absence of the other, which the court refused to permit, saying, that “conversations of one party without the other was present are not admis-ble in this case.” It is true both defendants are on
II. The remaining point in the case presents the question, whether the court erred in refusing to submit the case to the jury. The motion on which the court based its instruction to the jury to find for the defendants presents as a ground that the testimony “is not sufficient in law to sustain a verdict of guilty.” We have no argument for the appellees. The testimony on which it is sought to show the fact of criminal intimacy between the defendants is circumstantial, and of such a character that a majority of this court are of the opinion that there was no error in the instruction of the district court. Considering the importance of the question, the fact that the action of the district court is conclusive in this case, and that we are unaided by brief and argument, as we should be, we think it unadvisable to embarrass a future presentation of the question by a reference to the facts.
Under the provision of Code, section 4539, the judgment of the district court must remain for the purposes of this case ; but its action in excluding the’bffered testimony reversed.
