State v. Fitzgerald

• Decision Date: 22 April 1884
• Citation: 63 Iowa 268,19 N.W. 202
• Parties: STATE v. FITZGERALD.
• Court: Iowa Supreme Court

63 Iowa 268

19 N.W. 202

STATE

v.FITZGERALD.

Supreme Court of Iowa.

Filed April 22, 1884.

Appeal from Mahaska district court.

The defendant was indicted, tried, and convicted for the crime of seduction, and he appeals.John F. Lacy, for appellant.

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

ROTHROCK, C. J.

1. The indictment charges that the defendant “did seduce and debauch one Nellie Ferree, then and there being an unmarried woman of previous chaste character; that said seduction and debauching of said Nellie Ferree was then and there accomplished by said defendant by means of false artifices, promises, and arts; that said defendant then and there promised to give said Nellie Ferree presents if she would allow him to have sexual intercourse with her; that said defendant told said Nellie Ferree that there would be no harm in her having sexual intercourse with him, and that the same was not wrong, and would not hurt or injure; that said Nellie Ferree, being overcome by said false promises and said false statements, and by reason thereof, yielded to said defendant, and allowed him then and there to have sexual intercourse with her, by means of which she became pregnant with child.” The defendant demurred to the indictment upon the ground that the facts charged did not constitute seduction, and that it charged two offenses. The demurrer was properly overruled. There is no legal standard by which to determine what false promises, artifice, and deception are sufficient to constitute the crime of seduction. Of course, mere unlawful commerce for a consideration paid is not seduction. There must be some artifice or false promise by which the virtuous female is induced to surrender her person to the accused. What would be sufficient to overpower the mind of one woman would be insufficient to lead away another of more mature mind and discretion. In this case the defendant was a married man of the age of about 50 years, and Nellie Ferree, at the time of the alleged seduction, was about 12 years old. She gave birth to a child in September, 1876, when she was about 13 years of age.

2. The defendant moved to set aside the indictment because he was under arrest and imprisonment at the time the grand jury was impaneled, and he was not brought before the court, nor given an opportunity to challenge the grand jury. The motion was overruled. This ruling was correct. It appearsthat the defendant was under arrest by some process issued by a justice of the peace. But it does not appear that at the time the grand jury was impaneled he had been held to answer upon a preliminary examination. The court, therefore, had no jurisdiction over him, to bring him before it upon the impaneling of the grand jury.

3. The defendant was indicted in April, 1876, and was not tried until December, 1882. After his indictment he was confined in the jail of Mahaska county for a time, when, as the evidence shows, a hole was made in the wall of the jail by some one, and defendant was at liberty from that time until a short time before his trial. This is about all that the evidence shows as to an escape by defendant. It is claimed that this constituted no evidence of an escape, such as to authorize an instruction by the court to the jury that they might consider the escape as a fact in the case. We think otherwise. It is not claimed that the defendant was released from the jail, and it is a fair inference, from the proven facts, that he escaped therefrom.

4. The defendant was arrested for the crime and taken before a justice of the peace for a preliminary examination. Nellie Ferree was sworn as a witness upon the examination, and her testimony was taken. The defendant was given an opportunity to cross-examine her, but he did not do so. After the indictment was found Nellie Ferree died. The state introduced a witness upon the trial who was present at the preliminary examination, being the same person who filed the information before the justice, and, against the defendant's objection, the witness was allowed to detail the testimony given by Nellie Ferree upon the preliminary examination. It is claimed that the witness was not qualified to give the testimony, because it...