27 N.W. 358 (Iowa 1886), State v. Briggs

Citation:27 N.W. 358, 68 Iowa 416
Opinion Judge:REED, J.
Party Name:THE STATE v. BRIGGS
Attorney:T. H. Milner, for defendant. A. J. Baker, Attorney-general, for the State.
Case Date:March 19, 1886
Court:Supreme Court of Iowa
 
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Page 358

27 N.W. 358 (Iowa 1886)

68 Iowa 416

THE STATE

v.

BRIGGS

Supreme Court of Iowa, Council Bluffs

March 19, 1886

Appeal from Hardin District Court.

THE defendant was convicted of the crime of adultery, and sentenced to a term in the penitentiary, and from this judgment he appeals to this court.

AFFIRMED.

T. H. Milner, for defendant.

A. J. Baker, Attorney-general, for the State.

OPINION

[68 Iowa 417] REED, J.

The indictment on which the defendant was tried, omitting the portions which are merely formal, is as follows: "The said Samuel W. Briggs did, on the sixteenth day of March, 1884, and on divers other days and times [68 Iowa 418] within eighteen months prior to the finding of this indictment, in the county aforesaid, commit the crime of adultery, by then and there having carnal knowledge of one Essie Etta Hutzell, she being at the time an unmarried woman, and not the wife of defendant, and the said Samuel W. Briggs being at the time a married man, having a lawful wife then living, to-wit: Lizzie Briggs, and the said defendant then and there having committed said acts contrary to and in violation of law; that on the second day of February, 1885, the said Lizzie Briggs, still being the lawful wife of the said Samuel W. Briggs, did commence prosecution by filing in the office of C. Burling,

Page 359

a justice of the peace of Hardin county, Iowa, her information, charging said defendant with said crime; that in the further progress of said prosecution said defendant was, on the sixth day of February, 1885, held to answer said charge at the next term of the district court of said county, in accordance with law, by said justice of the peace."

On the back of the instrument were indorsed the names of the witnesses on whose evidence the grand jury acted in finding it, and, among the names so indorsed, was that of Lizzie Briggs. When the grand jury returned the indictment they also returned what purported to be a minute of the evidence taken by them. Attached to the minutes was the following certificate, which was signed by the foreman of the grand jury: "The State of Iowa v. Samuel W. Briggs. Evidence returned by the grand jury with the indictment in the above case." These minutes were placed by the clerk with the indictment, and retained in his office, but he did not mark them as filed. The defendant filed a demurrer to the indictment, which was overruled by the district court.

The first ground of the demurrer was that the indictment charges a series of offenses. It is provided by section 4300 of the Code that the indictment must charge but one offense. It is insisted that under this provision the indictment in question is bad. It is very clear that the state would not be permitted to charge in [68 Iowa 419] the same indictment distinct acts of adultery committed with different persons. It must also be admitted that each act of sexual intercourse between the accused and the woman named in the indictment, within the time covered by the indictment would be a distinct offense. The state, in making its proof, however, would not be confined to the date named or to any particular date within the time covered by the indictment, but would be permitted to prove the commission of the crime upon any day within that period, or within eighteen months before the finding of the indictment, the time not being an ingredient of the offense, and that being the period after its commission within which the indictment...

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