60 Iowa 535 | Iowa | 1883
Thereupon counsel for the defendant desisted from urging the proposition aforesaid to the jury.
Long after the counsel for defendant had closed his argument, but before the jury was instructed by the court, the
“ I prefer to be on the safe side, Mr. Mitchell; you can now address the jury on the assumption that the law requires that the prosecuting witness must be corroborated,, to sustain a conviction as charged.
“ The counsel declined to avail himself of the opportunity thus offered by the court. At no time did the court say to the jury that it must not be influenced by any of the foregoing language used by the court to the counsel, and herein-before set out.”
The court instructed the jury that the defendant could not be convicted “upon the testimony of the girl alone, and, unless there is other evidence tending to connect the defendant with the commission of said offense, you should acquit him.”
This instruction, whether right or wrong, was the law of the case, and it was the duty of the jury to follow it. It was a material question for the determination of the jury whether the evidence of the prosecutrix was true or had been fabricated. It is, therefore, insisted that the court erred in saying, in the presence and hearing of the jury, that she could neither design nor fabricate the account she gave of the transaction, and that defendant was prejudiced thereby.
That it was for the jury to say whether the evidence of the proscutrix was true, will not be doubted. It was not the province of the court to say what it did; and had an instruction been given to the jury, in substance the same as the remarks made to counsel in their hearing, it would, without doubt, have constituted reversible error. The effect upon the trial, the rights of the defendant, and the j ury must be the same in both cases. The influence would be the same in both cases. The attorney-general contends that the remarks were made by the court, as reasons influencing it in making a ruling on a question legitimately before the court, and that the right to do this undoubtedly existed. This may and will be conceded, if what was said by the court was pertinent to the
We are not prepared to admit that the court, under the guise of determining some questions which are legitimately before it, can make remarks in the presence and hearing of the jury, which would constitute error if contained in an instruction, but because they are not, it must be held the defendant is not prejudiced.
It will be seen that the court instructed the jury that if they found the prosecutrix was bruised, etc., and made immediate complaint, this would be evidence tending to con* nect the defendant with the commission of the offense. It seems to us this cannot be so.
Eeversed.