State v. Donovan

Decision Date12 June 1883
Citation61 Iowa 278,16 N.W. 130
PartiesSTATE OF IOWA v. DONOVAN.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Mitchell district court.

The defendant was indicted for the crime of adultery, was tried, convicted, and sentenced to imprisonment for two years. He appeals. The material facts appear in the opinion.L. M. Ryce, for appellant.

Smith McPherson, Atty. Gen., for the State.

DAY, C. J.

1. The person with whom the offense is alleged to have been committed was the sister of the defendant's wife, 15 years of age. She testified the defendant accomplished the connection with her by force and against her will. The court instructed the jury as follows: “To constitute the crime of adultery as against the man, the consent of the woman to the carnal intercourse is not indispensable, but the offense may, as against him, exist, though the connection was effected by force and against her will.” The giving of this instruction is assigned as error. It is fully in accord with the rule established in State v. Sanders, 30 Iowa, 582. We are content with the doctrine recognized in that case.

2. The court, after charging the jury that no prosecution for adultery can be commenced but on the complaint of the husband or wife, and directing them as to what acts upon the part of the defendant would constitute such complaint, instructed the jury as follows: “But if she appeared before the grand jury in response to a subpœna and testified before them in the case, but not intending to prefer the charge of adultery against the defendant, but gave her testimony supposing she was required to do so, this would not be a complaint by her against her husband, within the meaning of the law.” It is objected that this instruction is uncertain and misleading. It is not, we think, vulnerable to the criticism made. It announces a correct rule, and was really in the interest of, and beneficial to, the defendant.

3. The appellant complains of the following instruction: “The burden is on the state to show that the indictment was found on the complaint of the wife, and failing to do so the jury should acquit.” The objection made to the instruction is that it does not direct that the fact referred to must be proved beyond any reasonable doubt. In State v. Henke, 12 N. W. REP. 477, it was held that an averment in an indictment that the prosecution was commenced on the complaint of the wife must be proved by the state. Such fact is essential to the conviction of the defendant, but it does not enter into or constitute any part of the facts which go to make up the crime. While, therefore, the defendant cannot be convicted without proof that the indictment was found on complaint of the wife, we do not think it is incumbent upon the state to establish the fact beyond reasonable doubt. The thirteenth instruction asked by the defendant was correctly refused, if for no other reason, because it required the fact of the wife's complaint to be established beyond a reasonable doubt.

4. The defendant complains of the instruction of the court that “admissions made in ordinary or random conversations are not generally considered in law as satisfactory proof.” Defendant insists that the court should have instructed that “ordinarily such admissions are weak and unsatisfactory proof.” While the court might, without error, have couched the instruction in the language suggested by counsel, it was not error to employ the language used.

5. The court instructed the jury as follows: “It is competent for a person accused of crime to prove, as a circumstance in his defense, that his previous character as to the trait involved in the charge was good. Previous good character is not of itself a defense, but is a circumstance which should be considered by the jury in connection with all the other evidence, and it may be sufficient to turn the scale in his favor, but its value as defensive evidence in any...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT