187 Iowa 1169 | Iowa | 1919
1. Plaintiff alleges that, in the evening of September 27, 1932, defendant did willfully and forcibly assault plaintiff, while she was in' a shed, gathering eggs, threw her upon the floor of said building, and did forcibly and with menace, against her will, carnally know and debauch plaintiff, and did defile and have carnal connection with her against her will, causing her to become pregnant
We /Shall set out enough of the testimony to show the bearing of some of the errors assigned. At the time of the transaction, alleged to have occurred on September 27th, which, we understand, was Friday, plaintiff was a single woman, 28 years of age, and in good health. She had worked out, some years previous, but, at the time in question, was living with her mother and step-father, who were the tenants of the defendant. She was bom in G'ermany, and had attended school but little, and had only reached the second reader. She could understand only a part of the English language. She details the length and extent of her acquaintance with defendant, his visits to her home and attempted liberties with her, by. defendant’s taking hold of her and pinching her limbs and other parts of her person
“Q. Was you in the room that night when the baby was born, when the doctor showed the baby to Katie? A. Yes. Q. Was you there when they got the baby laid in the casket, and showed the baby to Katie in the casket? (Objected to as immaterial to any issue in the case, the only purpose at all can be, to win the sympathy of the jury as far as may be, by a recital of these facts which have certainly been gone into with sufficient fullness, etc. The court: That may be true, unless there is a possible chance of some effort to contradict it, it being denied in the pleadings — why, I think a reasonable amount of it may be indulged in. Objection overruled. Exception.)”
There seems to have been no direct answer to the question. The next that appears is that witness says she stayed there in the room after the baby was born. Other evidence will be referred to later, and in connection with the consideration of the errors, if it appears necessary.
2. There was some controversy in the trial below between the court and one of appellant’s counsel, running through the trial. These matters are set out quite fully in the abstract, and argued at some length. Appellant complains strongly of the alleged misconduct of the trial court in this respect. In view of a reversal on other grounds, we do not decide this point. Davis v. Hansen, 187 Iowa 583. There may be less contention, and all may be more patient, considerate, and respectful at the next trial.
• “We have come to an abiding-conclusion that the same sacredness should obtain over the introduction, of testimony as regards what took place before the grand jury that obtains in the endorsement of contracts that are reduced to
“Mr. Cosson: We don’t know if it is in existence. I had the clerk of the court investigate, and the county attorney, and both told me that they could not find any record of the minutes. The county attorney had searched very diligently for them. 1 make this statement to the court professionally.
“The Court: Well, if they were to testify to it, I don’t know just what I would do; I think I would still sustain the objection — and still, I don’t know.”
Cases are cited by appellee to the general rule that the best evidence must be produced, or a legal excuse given why it is not. To sustain the ruling, appellee cites the statute, Section 5258, Code Supplement, 1913, which provides that the clerk of the grand jury shall take and preserve minutes of the proceedings, and of the evidence, etc., which shall be read over to and signed by the witness. This does not require that all the evidence shall be taken down, and we do not understand it to be the practice to do so. The offer was not to show what was taken down and signed by the witness. Undoubtedly, had the writing been produced, it would have been competent evidence against the plaintiff, either as an admission by her, or to impeach, if it was contrary to her testimony given on the trial. Had it been produced, she would have been entitled to show that what was reduced to writing and signed by her was not all the testimony she gave, but a synopsis or minutes of her testimony. Such is the situation in some of the cases cited. Appellee
“One can conceive the accused’s objecting to the use of the minutes as evidence. He had no part in their making, no right to cross-examine or impeach, or to counter prove. But why should the State wish, or be allowed, to object?”
The State was not objecting, in the instant case; but it was the plaintiff, and not the defendant. But the Ford case was a habeas corpus case, wherein the plaintiff had been indicted, and was seeking admission to bail. The holding was, in substance, that the State could not go behind the indictment and the minutes of the grand jury, and sup-, ply additional testimony to that attached to the indictment, for the purpose of showing that the evidence of the guilt of defendant was strong and the presumption great; and it was held, on habeas corpus, in an application to be admitted to bail, that the minutes of the testimony returned with an indictment are competent for either the State or accused, and that the State may rely on them, as justifying denial of bail, or the accused, to show that, they are insufficient to justify such denial. Appellee also cites State v. Phillips, 118 Iowa 660, 668. In that case, a witness who was not a party admitted, on cross-examination, that minutes of his testimony before the grand jury had been read over to and signed by him. Later, the defendant offered the minutes in evidence, as tending to impeach the witness. They were excluded, on the State’s objection. The court held that they were admissible, but that, under the circumstances of that
“Surely, it is no more hearsay or secondary for one who heard and remembers to state what it was, than for a reporter whose memory is refreshed by his notes.”
In State v. Carroll, 85 Iowa 1, grand jurors were permitted to testify as to certain statements made by the defendants before the grand jury. But the only objection made was that the statements were not voluntary. The
State v. Dean, 148 Iowa 566, 573, is, we think, more nearly in point. In that case, a witness was allowed to testify that he was in the court room during the trial of one jointly indicted with defendant, and to state what defendant testified to on that first trial. The objection was that, the evidence having been taken down in shorthand, the shorthand notes, or the translation thereof, would constitute the best evidence, and that the witness who heard the testimony should not have been allowed to detail it. Counsel for defendant rely upon the statutory provision that the shorthand notes, or a transcript thereof, are admissible as a deposition, for the purpose of proving what the testimony of a witness was on a former trial, arid as excluding the evidence of one who was present and heard the testimony. Such statute provides, in substance, that the short
“We see nothing in the language of the statute to indicate an intention that this method of proof shall exclude the oral testimony of a witness who heard the evidence as to what it was. * * * Cases from other states cited by counsel, holding that the sworn statements or testimony of a witness on a coroner’s inquest or a preliminary examination, which statements are required by statute to be signed by the witness, constitute the best evidence of what such statements or testimony was, and that parol evidence thereof is inadmissible as secondary, are not in point, for the provision that the statement or testimony shall be signed by the witness is evidently intended to give to'such statement or testimony added weight by enabling the witness to correct 'his statements before signing if he shall find that the minutes are not a proper embodiment of what he desires his, statement or testimony to be. * * * We reach the conclusion that evidence as to the statements of a witness on a former trial which would have been competent prior to the enactment of this statutory provision above quoted, are not rendered incompetent by that provision.”
And we think this is true in regard to the minutes of the evidence. Cases before cited hold that the provision is not mándatory. It is possible that a case might arise where the minutes would be the best evidence, — as, for instance, if it was material to show what was taken down.
State v. Vance, 119 Iowa 685, and like cases, cited by appellant, are not in point. The complaint of the instruction is in regard to the use of the word “probable.” We think the exception must be sustained. The jury may well have understood that the court intended to say that, because defendant had been guilty of familiarities, on the whole case it was probable that the act of sexual intercourse was committed by defendant, as charged. It is doubtless true that a -man who has taken liberties with a woman’s person, and who has the disposition or desire to have intercourse with her, would be more likely to do so, — that is, it would be more probable, — than one not having such disposition. The acts of familiarity indicate such a disposition. But we think it is not proper to say to the jury, in an instruction, that it is probable that the act was committed. Appellee cites State v. Carpenter, 124 Iowa 5; State v. Trusty, 122 Iowa 82, 85. The instruction in the Carpenter case was quite different. In the Trusty case, it is said in- the opinion that acts of indecent familiarity have a tendency to show a breaking down of all safeguards of self-respect and modesty, and a general preparation for the offense, and that they are ad
“In legal effect, if a claim is made probable by the evidence, it is for the reason that the preponderance of the evidence is in favor of the claim.”
In that case, the defendant requested an instruction to the effect that, if the jury believed that, at the time of the shooting, it was probable that defendant was insane, then the presumption of insanity was overcome. This instruction was refused. In State v. Thiele, 119 Iowa 659, 662, we said:
“By saying insanity is probable is meant, as understood in common parlance and from the definition of lexicographers, that there is more evidence of insanity than against it, or better reason to believe the defendant insane than to suppose him sane.”
See, also, Bailey v. City of Centerville, 108 Iowa 20, 28. According to Webster, the word “probable” means, “Having more evidence for than against” etc. We think the natural effect of this instruction was to say to the jury that, if the jury found the acts of familiarity to be true, then there was more evidence for than against the claim that the said act of sexual intercourse was committed by -defendant, as chai’ged.
5. In Instruction No. 10, the court instructed the jury, in substance, that the testimony of the party injured is suf
6. Complaint is made of the testimony of plaintiff’s mother in regard to the stillborn child in the casket. This has been set out. The argument is that it tended to inflame the jury. The matter was not gone into at any considerable length, but we are unable to see that it was necessary. It should be avoided on retrial.
7. It is assigned as error that the court should not have permitted one of the medical witnesses to testify as to what caused plaintiff’s trouble, rather than what might or could have produced such result. But the testimony of this witness in' chief went in without objection, and matters were gone into by defendant on cross-examination. The question objected to was on re-examination. We shall not set out the evidence, but we think there was no error. As to the other medical witness, the record shows that the court sustained defendant’s objection, and other parts of his testimony complained of were stricken out.
Appellant has assigned sixteen errors, the more important of which we have discussed. The opinion is ali*eady too long, and we shall not take the space to notice the others. They are such as are not likely to occur on a retrial.
For the errors pointed out, the cause is — Reversed and remanded.