State v. Carson

• Citation: 170 N.W. 781,185 Iowa 568
• Decision Date: 19 February 1919
• Docket Number: 32056
• Parties: STATE OF IOWA, Appellee, v. RAY CARSON, Appellant
• Court: United States State Supreme Court of Iowa

170 N.W. 781

185 Iowa 568

STATE OF IOWA, Appellee, v. RAY CARSON, Appellant

No. 32056

Supreme Court of Iowa, Des Moines

February 19, 1919

Appeal from Lucas District Court.--D. M. ANDERSON, Judge.

CONVICTION for seduction. Defendant appeals.--Reversed and remanded.

Reversed and remanded.

J. A Penick and W. Collinson, for appellant.

H. M Havner, Attorney General, F. C. Davidson, Assistant Attorney General, C. F. Wennerstrum, and E. S. Wells, for appellee.

SALINGER J. LADD, C. J., EVANS, GAYNOR, and STEVENS, JJ., concur.

OPINION

SALINGER, J.

I.

For the sake of prosecutrix, as well as because it would serve no useful purpose to do otherwise, we refrain from detail. Prosecutrix was but 17 at the time of her alleged seduction, and defendant, about 20. But the record shows conclusively that, beginning at 15, she had such relations with men as that, while it may be true that such relations were not criminal, they were such as made her sufficiently familiar with the "way of a man" to understand the peril of permitting the defendant to take improper liberties with her at their first meeting,--one had after they had just been introduced,--to enable her to rate at its true value such promise of marriage as she testifies to. She testifies defendant solicited sexual intercourse almost at the beginning of this first meeting; that he took indecent liberties, and in connection "with carrying on that way," he began to "love" her; that she does not remember just what he said, except that, while taking these liberties, "he made the remark that he loved me and cared for me that way;" that, at one stage of soliciting intercourse, he said he thought a whole lot of her, and asked her if she could not learn to love him; that she told him she didn't know whether she could or not; that "the way he treated me and asked me to do business with him and talked that way to me, I did not believe that I could;" that, by what he said, and the taking of the liberties, he got her to lose control of herself; that she guesses he thought or knew she had lost control of herself, and thereupon "he went ahead and did his business;" that the only objection she made was she was afraid she would get herself into trouble, and did not want that to happen, and he said that, if she did, he would get her out of it. Up to this point, nothing was said about marriage. As to a promise of marriage, her testimony was this:

"He said if he got me into trouble, he would marry me--if he could not get rid of it, he would marry me. Q. Now, you would never have had intercourse with him unless he had either promised to marry you. A. No, sir. Q. And now you state that is the reason that you had intercourse with him--because he made these promises. A. Yes, sir, because he let on like he cared for me. He told me he loved me."

The quality of the "caring" and of the protestations of love has been sufficiently set forth. It suffices to say that they were not naturally calculated to induce a fall from chastity; that the "caring" was rather brutal, and the protestations quite casual and incidental. The important factor was the belated promise of marriage. That promise was this:

"Q. He told you, if he got you into trouble he would get you out of it? A. Yes, sir. Q. Or he would marry you,--one or the other? A. Yes, sir. Q. That is the promise of marriage you speak of when you say he promised to marry you? A. Yes, sir. Q. That is the first time you were ever with him? A. Yes, sir."

In acting upon this record, we must bear in mind, too, that this testimony should not be strained against defendant, for, in the words of State v. Haven, 43 Iowa 181:

"It is perfectly natural, and to be expected, that the prosecutrix should, as far as possible, shield herself, and cast the blame, if any there was, upon the defendant."

It is conceded that we should interfere with a conviction though the verdict is not wholly without support, if it be clearly against the weight of the evidence. See State v. Pray, 126 Iowa 249, 99 N.W. 1065; State v. Hessenius, 165 Iowa 415, 146 N.W. 58; and State v. Young, 158 Iowa 647, at 652, 138 N.W. 871.

In State v. Saling, 177 Iowa 552, 555, 556, 159 N.W. 255, the cases governing the review of a conviction are collated, and held that, while we will not set aside a verdict of guilty readily, for being contrary to the weight of the evidence, we will do so more readily than if the verdict were on the civil side; that, while we will not interfere where there is clear conflict in the evidence, we will not support the verdict if, proceeding carefully and cautiously, we must find that the verdict is against the clear weight of the evidence. We point out, in the Saling case, that, in State v. O'Donnell, 176 Iowa 337, 157 N.W. 870, we reversed a conviction of murder in the first degree because we find the evidence insufficient to sustain a conviction in that degree; and that State v. Nolan, 92 Iowa 491, 61 N.W. 181, is to the same effect. We conclude, in the Saling case, that:

"It will no more do to make the verdict of a jury conclusive in a criminal conviction of a grave felony than it would do to try criminal cases de novo. That neither is permissible does not in the least affect either our duty or our power to interfere with the verdict of a jury in a case where such interference is proper."

And we cannot agree that, in determining whether the evidence clearly preponderates against the verdict, the fact that the motion for new trial is overruled by the judge who heard and saw the parties and the witnesses ends the inquiry we now have. That is not true even on the civil side. See Miller v. Paulson, 185 Iowa 218. We adhere to our statement in the Miller case that this advantage possessed by the trial...