State v. Brown

• Decision Date: 17 February 1910
• Parties: STATE v. BROWN.
• Court: Iowa Supreme Court

146 Iowa 113

124 N.W. 899

STATE

v.BROWN.

Supreme Court of Iowa.

Feb. 17, 1910.

Appeal from District Court, Mahaska County; B. W. Preston, Judge.

The defendant appeals from a judgment of conviction on charge of adultery. Reversed.John N. McCoy and F. E. Gordon, for appellant.

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

WEAVER, J.

The indictment charges the defendant with the crime of adultery with Julia Dow, wife of the prosecuting witness, N. L. Dow. The principal evidence relied upon by the state to sustain a conviction of the defendant is found in the testimony of his alleged paramour, Julia Dow, who admits the fact of the alleged adultery, and lends her aid to the prosecution. While numerous exceptions are argued by counsel for appellant, we think those of real merit are the sufficiency of the evidence and more especially the sufficiency of the corroboration.

As the chief witness, the one without whose testimony a verdict of guilty could not be sustained, is the alleged paramour and accomplice of the defendant, the rules of law and the dictates of common fairness demand that her accusation have corroboration from some other and presumably more credible and more wholesome source. Does the record present such corroboration? As was said on the former hearing, this is “the serious question in the case.” Let us inquire briefly into such of the so-called corroborating circumstances as do not depend in any degree on the testimony of this woman. The offense for which defendant was convicted is alleged to have been committed on September 29, 1908. One witness, a neighbor, testified that in July of that year she was making her way along the street in the direction of Mrs. Dow's residence, and saw the defendant go into an empty house a block or two from the Dow home, and again in September she saw him enter an alley still further away. There is not the slightest evidence that Mrs. Dow was in or near the “empty house,” or in or near the alley mentioned at the time appellant was seen to enter there, or that his presence in these places had any bearing upon the matter of his alleged illicit relations with her. It will hardly do to say that the presence of a man upon a public street anywhere within two or three blocks of the home of an immoral woman is evidence tending to connect him with the commission of an adultery which she swears took place at a subsequent date 3 1/2 miles away in the country. There is doubtless a degree of propinquity in such cases to which a man may not approach without incurring just suspicion, but we feel warranted in saying that its geographical area was unduly extended by the trial court. The evidence referred to had no tendency to corroborate the story of Mrs. Dow, and should have been excluded. Aside from the evidence to which we have just referred, there is absolutely no circumstance of alleged corroboration shown which does not depend for its proof in whole or in part upon the testimony of Mrs. Dow. For instance, there is an effort to show that on the day of the alleged offense defendant drove out with her in a covered carriage in the direction of the alleged place of the adultery, taking a road leading past the home of the woman's daughter. Mrs. Dow so testifies, and the daughter swears that she saw a carriage of that kind pass, but did not see or recognize either of the persons in it. Again she swears to adultery with the defendant in Lucas county several years prior to the alleged act in Mahaska county which is charged in the indictment. No other person testifies anything whatever in corroboration of this statement. It is manifest that, if we look to the daughter's evidence alone, it in no manner tends to identify the defendant as an...