State v. Ean
| Decision Date | 10 May 1894 |
| Citation | 58 N.W. 898,90 Iowa 534 |
| Parties | STATE OF IOWA v. SILAS EAN, Appellant |
| Court | Iowa Supreme Court |
Appeal fro Winneshiek District Court.--HON. L. O. HATCH, Judge.
THE defendant was indicted for the crime of adultery, convicted and sentenced to the penitentiary for the term of one year. He appeals.
Affirmed.
E. R Acers and E. E. Cooley for appellant.
John Y Stone, Attorney General, and Thos. A. Cheshire for the state.
I.
The indictment charged the defendant with having committed the crime of adultery by having carnal knowledge of a woman whose name was unknown to the grand jury, and who was over eighteen years of age. It contained other necessary averments. It is urged that the evidence does not support the verdict. The record discloses without conflict that defendant was a married man at the time the crime is alleged to have been committed; that his wife was the prosecuting witness before the grand jury and on the trial in the court below. The testimony shows: That two ladies called on the defendant at his hotel on June 26, 1892, in Decorah. That defendant and the ladies took supper together, and all left the hotel. That defendant did not appear there again until the next morning. That defendant and one Oleson met two ladies that evening at the railroad depot. That defendant and his companion thereafter left the women, and went to the hotel for a short time. That defendant and Oleson then went to two rooms in Steger's building. These rooms had no door between them,--simply an opening. That these two women came into these rooms, and that defendant occupied one of the rooms most of the night, and one of the women was in his room, and stayed there six or eight hours. That there was a bed in the room defendant was in. That about four o'clock in the morning defendant went into the room occupied by Oleson and the other woman, and insisted upon her coming to his room, and she refused, and he threatened to have her arrested if she did not accede to his wishes. Defendant then went out of the room, and, after he had gone, the woman who had been with him in his room made her appearance. Soon after, a policeman arrested the women, and took them to jail. The beds in both rooms had been occupied. Now, it is true that no one saw defendant in the act of having connection with either of these women. The testimony is wholly circumstantial, yet was sufficient to warrant the verdict. It is said that the witness Oleson was an accomplice, and hence must be corroborated before a conviction can be had. But Oleson was not an accomplice. An accomplice is "one who is joined or united with another; one of several concerned in a felony; an associate in a crime; one who co-operates, aids, or assists in committing it." Black, Law Dict., title, "Accomplice." Oleson was in no way aiding or assisting defendant in the commission of the crime of adultery. Oleson may have been guilty of a crime himself, independent of defendant; but, however that may be, Oleson had no part in inducing or assisting defendant in committing the crime of adultery.
II. Error is assigned because the court, in its instructions, did not charge the jury that it was incumbent on the state to prove that the woman with whom the sexual intercourse was had, if any, was over eighteen years of age. It is alleged in the indictment that she was over eighteen years of age. It is conceded that the allegation was unnecessary, but it is claimed that, being averred, it must be proven. It has been held in this state that an unnecessary averment in an indictment may be treated as surplusage if, without it, the allegations are sufficient to charge the offense. State v. Finan, 10 Iowa 19; State v. Schilling, 14 Iowa 455; State v. Ansaleme, 15 Iowa 44; Town of Eldora v. Burlingame, 62 Iowa 32, 17 N.W. 148; State v. Ormiston, 66 Iowa 143, 23 N.W. 370; State v Goode, 68 Iowa 593, 27 N.W. 772. Nor was it necessary to set out in the indictment the name of the woman with whom defendant had...
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