State v. Baker

• Decision Date: 05 April 1910
• Citation: 146 Iowa 612,125 N.W. 659
• Parties: STATE v. BAKER.
• Court: Iowa Supreme Court

146 Iowa 612

125 N.W. 659

STATE

v.BAKER.^d1

Supreme Court of Iowa.

April 5, 1910.

Appeal from District Court, Winneshiek County; A. N. Hobson, Judge.

The defendant, being indicted and convicted upon a charge of adultery, appeals. Affirmed.George W. Adams and E. R. Acres, for appellant.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

WEAVER, J.

The indictment herein was returned November 19, 1908, and on the same day defendant was arrested and released upon the giving of an appearance bond. On February 3, 1909, the cause being about to be reached for trial, he filed a motion for continuance on the ground of illness and consequent inability to attend court, which motion was supported by his own affidavit and the affidavits or certificates of two physicians. The county attorney objected to a continuance, alleging that the claim of sickness was a sham and fraud, and asked the court to appoint three physicians to visit and examine the defendant and report upon his condition. The physicians supporting the motion were called in and examined under oath. On the following day three physicians under direction of the court examined the defendant at his home, and testified to their opinion that he could attend the trial without serious injury or risk to his health. The motion for continuance was thereupon overruled. On appearing for trial, the court without having forfeited the appearance bond or demanding other or increased bail ordered defendant into the custody of the sheriff. The trial resulted in a verdict of guilty as charged. A motion for a new trial grounded on the insufficiency of the evidence and the alleged error of the court in overruling the motion for a continuance and in ordering the defendant into the custody of the sheriff before verdict and judgment was filed and overruled.

1. Counsel lay but little stress upon the objection to the sufficiency of the evidence. Indeed, there is hardly room for argument on that proposition. While the testimony is largely of a circumstantial character, it nevertheless had a clear and direct tendency to establish the defendant's guilt, and is substantially the same showing on which the conviction of defendant's alleged paramour has already been affirmed by this court. State v. Farrell, 123 N. W. 1018. It is only in rare instances that the charge of adultery can be proven by evidence more direct or convincing than was shown in this case, and, if those guilty of the offense were to be held immune from punishment until convicted upon direct and positive evidence of eyewitnesses of the act, the statute against it might as well be repealed. The verdict has sufficient support in the record.

2. The chief complaint of the appellant is that, by reason of being forced to trial when sick and unable to give due care and attention to his defense, he was denied the opportunity of a fair trial, and that the prejudice thus resulting to him was aggravated by the order of the court remanding him to the custody of the sheriff. The record upon these matters is somewhat unusual. If the testimony of three of the physicians and of the defendant and his counsel and members of his family were to be alone regarded, we should be compelled to say that defendant did not have a fair trial and to remand the case for another hearing; but, according to the showing by three other physicians and by numerous...