State v. Donovan

• Decision Date: 10 March 1905
• Citation: 102 N.W. 791,128 Iowa 44
• Parties: THE STATE OF IOWA v. EDWARD DONOVAN, Appellant
• Court: Iowa Supreme Court

102 N.W. 791

128 Iowa 44

THE STATE OF IOWA v. EDWARD DONOVAN, Appellant

Supreme Court of Iowa, Des Moines

March 10, 1905

Appeal from Lyon District Court.--HON. GEO. W. WAKEFIELD, Judge.

THE defendant was convicted of seduction, and appeals.

Affirmed.

Parsons & Riniker, for appellant.

Chas W. Mullan, Attorney-General, and Lawrence De Graff, Assistant Attorney-General, for the State.

OPINION

LADD, J.

The prosecutrix was a school-teacher of three years' experience, and at the time of the alleged intercourse was over twenty-two years of age. The defendant was a married man, as she well knew, his wife being her cousin. He pretended to be a hypnotist, and the evidence tended to establish his ability to exercise control over a subject being operated upon. In 1901 he had "put her to sleep" at a family entertainment at her home, and according to her account, she had been under his influence several times since. Subsequently he told her that he loved her, and thought more of her than of his wife, and in the spring of 1902 embraced her; saying that he was not satisfied with his wife, but was with her. She frequently called at his real estate office, when he would tell her she was good-looking, and kiss and caress her, and claimed that he could "sit down and make a suggestion that she come to his office at a certain time, and she would come." If she is to be believed, she could not stay away. Finally he happened at her home when she was alone, and, after imparting the story of his love, had intercourse with her. She is unable to say whether this was by her consent, but knew what was done, and that it was wrong, and told him it was not the proper thing to do. On cross-examination she was asked: "Q. You did not let him have connection with you because he told you he loved you? A. I suppose it was through his flattery. . . . Q. What I want to know is which it was done through--hypnotic influence or flattery? A. I don't know exactly. Q. Would you have yielded to him if it had not been for the so-called hypnotic influence? A. I can't say. . . . All I can tell, he had an influence over me in some way--whether through flattery or hypnotism I can't say. I kind of liked him. I don't know if I would have yielded if he hadn't told me that he loved me. I can't tell anything about it. No one knows. I can tell what was done." Asked whether she had said to the grand jury that it was through his power that she had intercourse with him, she answered: "I might have said through his power. He could have used his power through flattery or hypnotism--either one. I told them that I didn't know which it was. All that I know is that I had sexual intercourse with him."

Counsel for appellant insist that the evidence, the substance of which we have set out, was insufficient to sustain a finding that the prosecutrix yielded because of the artifice of the accused. It must be conceded that there is some ground for this contention. He was a married man at the time. She knew this, and must have understood that no other than a meretricious relation between them could be anticipated. But the mere fact that the defendant was a married man ought not to shield him. Hawn v. Banghart, 76 Iowa 683, 39 N.W. 251. Nor had the further fact that she was unable to determine whether he obtained control over her person through hypnotism or flattery and love-making. It is enough if he succeeded through either artifice or both, and would not have done so but for the exercise of either or both on the part of the defendant. The falsity of such artifices consists in their practice in ostensible innocence, but with the real design of acquiring such an influence over a virtuous woman as shall through them induce her to yield to his embraces. The kind or amount of seductive arts, or the length of time practiced, is not so material as the fact that they were sufficient to, and did actually, overcome the scruples of the particular woman. State v. Higdon, 32 Iowa 262. Whether those practices were effective must necessarily depend on the facts of each case. Women are not all alike, and what might prove irresistible to one would arouse contempt only in another. About all that may be exacted by the law is that the false arts practiced be somewhat calculated to, and in fact accomplish the purpose alleged. From the evidence in the instant case the jury might well have found that the defendant had persistently sought, by flattery and love-making, and by pretending to exercise an occult influence over the prosecutrix, to acquire control over her, and that he so did with the design of gaining possession of her person. True, she testified to being unable to say why she yielded. Had she been able to have stated, her answer would have been in the nature of a conclusion (State v. Hughes, 106 Iowa 125, 76 N.W. 520), and not controlling. The object of the defendant, a married man, in his conduct toward prosecutrix, was not difficult of comprehension; and the jury might well have found that she yielded because of the artifices of flattery and love-making, or of pretended or actual occult influences, or of both, when but for them she would not have done so. We are content with the finding of the jury.

II. Two surgeons were called, and, as tending to establish their qualification to testify as experts of the use of hypnotism as an anaesthetic stated--the one, that he was the superintendent of an insane hospital; had not made an extensive study of the subject, but knew, to a certain extent, what modern...