133 Iowa 741 | Iowa | 1907
The indictment was filed October 7, 1905, and appellant contends that the evidence was not sufficient to support a finding that he had had sexual intercourse with Anna. Christensen, the wife of the prosecutor, within eighteen months prior to that date. The accused and the prosecuting witness are cousins, and came to this county from Denmark about eighteen years previous to the trial. The families had lived near neighbors and were intimate. The wife of the defendant died in 1901. Shortly afterwards the accused moved some three and one-half miles distant, and later on a farm not far from Missouri Valley, and then into that city. The prosecutor’s wife left him in August, 1902. Prior thereto no improper relations between the defendant and Mrs. Christensen were proven, unless the friendly act of paring her corns in the presence of the children, noticed by the prosecutor upon his return from milking the cows one evening, and the fact that he stopped the binder long enough to enter the house, upon her invitation, to eat an apple, be regarded as such. True he shut the door after him, and she was lying on the lounge, having been in ill health for some time. But surely this was scarcely enough to arouse a well-grounded suspicion. Thereafter they were shown to have been together with more or less frequency until their separate departure for the State of Washington in May, 1905. There was no direct proof of any criminal relations between them. The most that can be said is that the jury might have found that they were so disposed previous to, and that they had opportunity to indulge their passions within, eighteen months prior to the finding of the indictment. The only showing of opportunity was that defendant was at the house of Mrs. Christensen in Missouri Valley several times within the period stated, and always in the evening; but he does not appear to have remained until
Under these circumstances, the court instructed the jury, in the fifth paragraph of the charge, that:.- “ The fact of illicit intercourse may be established in two ways: First, by direct proof of the act of such intercourse; and, second, by showing a disposition upon the part of t'he man to have illicit intercourse with the woman, and a disposition upon the part of the woman to have illicit intercourse with the man, and an opportunity to gratify such mutual disposition to have illicit intercourse with each other.” In the sixth paragraph the jury were told, in substance, that there was no direct' proof, and, that the State relied on circumstantial evidence, to establish mutual disposition and opportunity, and in the seventh paragraph that if, from the conduct and relations of the persons accused with each other, they were satisfied “ beyond a reasonable doubt that the defendant had a disposition to have sexual intercourse with the said Anna Christensen, and the said Anna Christensen had a disposition to have illicit intercourse with the defendant, and you further find from the testimony that the State has shown such facts and circumstances surrounding the defendant and the said Anna Christensen, their conduct and relations with each other, as satisfy you beyond a reasonable doubt that the defendant and the said Anna Christensen had an opportunity to gratify such mutual disposition to have illicit sexual intercourse with each other, that will be sufficient upon this point, and you should accordingly find that the State has made out such act of intercourse; but if you find from the évidence that the State has failed to so make out such disposition on the part of either or both of such parties, or if you find the State has failed to so make out an opportunity to commit the act then in either of such events you should
It will be observed that this last paragraph does not modify the rule as announced in the three preceding; for, while it advised that the finding of guilty must be inconsistent with any other reasonable hypothesis except of guilt, the jury had the right to understand from those’ preceding it that mutual disposition to have sexual intercourse and opportunity to indulge such disposition, without more, might and should be found inconsistent with any reasonable hypothesis of innocence. Indeed, the seventh paragraph explicitly directed the jurors that, upon finding such mutual disposition and opportunity, they “ should accordingly find that the State has made out such act of intercourse.” The rule as stated may be applicable to animals controlled by instinct, but not to men endowed by reason and capable of exercising moral restraint. Though having the propensity or disposition to commit crime and the 'opportunity to do so, the law of the country, to say noth
The necessary deduction from these observations is that
We have discovered no case in the books which sustains the instruction of the court. In Weaver v. State, 74 Ga. 376, the mere opportunity was held insufficient, although in that case there had been no previous misconduct. We are of the opinion not only that the court misdirected the jury, but that the evidence was insufficient to justify a conviction. —' Reversed.