204 N.W. 215 | Iowa | 1925
The defendant Viola Walker was jointly indicted with one Richard Eddy for the crime of sodomy, and on her motion was tried separately, on a plea of not guilty. After verdict of guilty and the overruling of motion for new trial, judgment was entered, in conformity to law.
We will not stain the pages of judicial opinion by detailing *342 the revolting and nauseating evidence disclosed by the record. The testimony of the three eyewitnesses to the act upon which the indictment is predicated is not traversed, and there is no denial on the part of the defendant, except as 1. CRIMINAL contained in her plea of not guilty. Her sole LAW: defense is that she was so intoxicated at the evidence: time of the commission of the crime charged as intoxica- to be incapable of entertaining an intent. The tion: defense rests upon the record made by the State. sufficiency No witness was offered by the defendant, and she as defense. did not testify. We are not advised whether the court instructed the jury on the question of intoxication, as the record before us does not set out the charge of the court. This matter, therefore, must be considered under the proposition that the verdict is not supported by the evidence, in that the defendant was so intoxicated that she was incapable of forming a criminal intent.
Drunkenness is not strictly a defense to crime; but it is defensive matter, which the defendant must establish affirmatively by a preponderance of the evidence. State v.Crietello,
The only other proposition urged by appellant is based on the misconduct of the county attorney in his argument to the jury. The record does not contain the challenged argument, and this is fatal to the assignment. The only reference 2. CRIMINAL whatsoever to the argument is found in the LAW: trial: motion for new trial, in which a certain argument: statement alleged to have been made by the bill of county attorney is recited. That the statements exceptions upon which reversible error is predicated were necessary. made, is flatly denied by the county attorney under oath, in the resistance to defendant's motion for new trial. There is no occasion to review the situation. No proper bill of exceptions is before us. State v. Gorman,
No prejudicial error appears, and the judgment entered is —Affirmed.
FAVILLE, C.J., and STEVENS and VERMILION, JJ., concur.