State v. Burns
| Decision Date | 08 April 1903 |
| Citation | 94 N.W. 238,119 Iowa 663 |
| Parties | STATE OF IOWA, Appellee, v. EDWARD BURNS, Appellant |
| Court | Iowa Supreme Court |
Appeal from O'Brien District Court.--HON. JOHN F. OLIVER, Judge.
DEFENDANT was tried upon an indictment charging him with the crime of seduction, and having been adjudged guilty, appeals.
Affirmed.
W. D Boies for appellant.
C. W Mullan, Attorney General and C. A. Van Vleck Assistant Attorney General, for the State.
The indictment charges the seduction of Mary Ellen O'Grady. Upon the trial the prosecuting witness gave her name as Nellie O'Grady, and was so named and called by other witnesses who spoke of her in testimony. It is argued that this is a fatal variance and requires a reversal. The rule of law which requires an indictment for seduction to state the name of the woman charged to have been seduced is in tended to apprise the accused of the identity of the person thus alleged to have been wronged. In modern criminal practice, merely formal errors and verbal variances, which, it is apparent, could not have misled or prejudiced the accused, are treated as immaterial. That the variance here complained of comes within this description is too clear for controversy. It is a matter of common knowledge that a girl or young woman bearing the name of "Ellen" is often if not usually called "Nellie" by her friends and acquaintances, and until she reaches considerable maturity of years she is rarely spoken of or addressed by any other name; and in the case before us there is not even a pretense that the defense was in any manner surprised by the production upon the witness stand of "Nellie" instead of "Mary Ellen." It is the identity of the person to which the indictment should direct the mind of the accused, and if that is accomplished, and he comes into court knowing to a moral certainty whom he is charged to have seduced, a slight variance in the name, or even the use of a wrong name, affords no ground for setting aside a conviction. State v. Carnagy, 106 Iowa 483, 76 N.W. 805. Under the more technical rules observed in former years, the objection here raised by appellant could, perhaps, be sustained; and many authorities from other jurisdictions, and especially among the older precedents, could be, and are in fact, cited by counsel in support of the position, but they are not in harmony with the later and more reasonable rule. Our statute provides (Code, section 5286) that where the charge in the indictment involves an injury to a person and the description is in other respects sufficient to identify the act, an erroneous allegation as to the name of such person is immaterial. Following this provision, it has often been held that the use of an incorrect name will not vitiate an indictment. State v. Emeigh, 18 Iowa 122; State v. Carr, 43 Iowa 418; State v. Emmons, 72 Iowa 265, 33 N.W. 672; State v. Williams, 20 Iowa 98. Appellant seeks to take this case out of the rule established by our previous decisions, because, as it is said, no witness expressly identified Nellie O'Grady as Mary Ellen O'Grady, but we cannot regard this objection as sound. The identity is sufficiently evident without other explanation than was afforded by the circumstances developed on the trial. If, for instance, an indictment gives a Christian name as "Catherine," and the person, when called to the stand, gives her name as "Kate," or if the name charged is "Caroline," and she calls herself "Carrie," every one understands the identity of these appellations without the aid of witnesses; and this is no less true of "Ellen" and "Nellie." The record presents no error in this respect.
II. Complaint is made that during the argument of counsel the judge presiding was absent from the court room, dictating instructions to the reporter, and while so employed could not hear what was being said and done in the presence of the jury. The point made does not appear to be sustained by the record. It is shown by the bill of exceptions that the judge left his desk, and went to a door leading into an adjoining room, where the reporter was employed, and, standing in or at the door, dictated to the reporter, in a low tone, the charge to the jury. He was in a position at all times to have an oversight of the courtroom, and to rule promptly upon any question of order or procedure which might arise in the progress of the argument. Appellant does not seriously question this statement, but insists that the act was prejudicial, because the judge was "absent to that extent that he could not have heard and comprehended what was being said by counsel, because he was so engaged that it was impossible." It is also further said that the court should not dictate its instructions in the presence of the jury, and thus distract the jury's attention from the argument of counsel. As to the first point, we think there is no law or rule of practice which makes it reversible error for the court to fail to hear and comprehend the argument of counsel. The most attentive and observant court is not always able to accomplish that desirable end, even when the argument is directed to itself; and certainly it should be regarded no lapse from judicial propriety, if, during an argument to the jury, the judge, while remaining in direct supervision of the court room, turns his attention to the preparation of his charge. We can understand, of course, that a judge dictating instructions as indicated in the present instance, could do so in such loud voice and obtrusive manner as to seriously interfere with the argument and afford just ground of exception, but no such gross breach of decorum has been here shown.
III. Error is assigned upon the rulings of the trial court permitting the prosecuting witness to answer certain questions objected to as leading. It is unnecessary to quote the record in this respect. Many of the questions were undoubtedly leading, but the rulings are not therefore, of necessity, erroneous. State v. Wickliff, 95 Iowa 386, 64 N.W. 282. The objection here made is addressed peculiarly to the discretion of the court. Much depends upon the nature of the issue being tried, and upon the age experience, and intelligence of the witness. In a case of this kind it is a matter of frequent occurrence that the prosecuting witness must, of necessity, be led to some extent, in order to obtain her story at all. If she have any degree of native modesty remaining, the extremely unpleasant prominence of her position upon the witness stand before court and jury, and in the presence of the curious crowd, giving publicity to her own shame, tends to make her reticent, and to confine her answers to those which are extracted by more or less persistent and leading questions. The presiding...
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...Di Carlo v. United States, 2 Cir., 6 F.2d 364, certiorari denied, 1925, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168. 8 State v. Burns, 1903, 119 Iowa 663, 94 N.W. 238, 241. 9 "(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be 10 ......
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...135, 110 N.W. 328; State v. Norman, 135 Iowa 483, 113 N.W. 340; State v. Wilson, 157 Iowa 698, 141 N.W. 337). See, also, State v. Burns, 119 Iowa 663, 94 N.W. 238, State v. Drake, 128 Iowa 539, 105 N.W. 54, where the limits of argument are well defined. We have held that, where defendant ma......
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State v. Henderson, No. 89,545 (KS 8/27/2004), 89,545
...mad the guilty and appal the free, confound the ignorant, and amaze, indeed, the very faculties of eyes and ears.'" State of Iowa v. Burns, 119 Iowa 663, 94 N.W. 238 (1903). Further, our modern courtroom sensibilities make us wince at remarks such as expressed by counsel during his summatio......