State v. Goodsell
| Decision Date | 04 June 1908 |
| Parties | STATE OF IOWA v. WARREN GOODSELL, Appellant |
| Court | Iowa Supreme Court |
Appeal from Butler District Court.-- HON. C. H. KELLEY, Judge.
THE defendant was convicted of the crime of incest, and appeals.-- Affirmed.
Affirmed.
Tom H Milner, for appellant.
H. W Byers, Attorney General, and Chas. W. Lyon, Assistant Attorney General, for the State.
The State elected to rely on the particular offense said to have been committed in the Shell Rock river in August, 1903. The evidence tended to corroborate the story of the daughter of the accused, but the court failed to instruct the jury on the necessity of corroboration. This is assigned as error. The statute does not exact corroboration in prosecutions for incest save when the other party to the act is an accomplice. Section 5489 of the Code prohibits conviction "upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense." Black's Dictionary defines an accomplice as "an associate in crime; one who co-operates, aids, or assists in committing it." Plainly enough a woman who voluntarily has sexual intercourse with a man within the prohibited degrees of relationship is an accomplice. State v. Kellar, 8 N.D. 563 (80 N.W. 476, 73 Am. St. Rep. 776); State v. Jarvis, 18 Ore. 360 (23 P. 251); Porath v. State, 90 Wis. 527 (63 N.W. 1061, 48 Am. St. Rep. 954); 3 Wigmore, Evidence, section 2060. If, however, the female is the victim of force, fraud, or undue influence, so that she does not act voluntarily and join in the act with the same intent the male does, she ought not to be regarded as an accomplice. State v. Rennick, 127 Iowa 294, 103 N.W. 159; State v. Kouhns, 103 Iowa 720, 73 N.W. 353.
In the case at bar accused's daughter was under fourteen years of age, and therefore presumed incapable to have committed the crime. Godfrey v. State, 31 Ala. 323 (70 Am. Dec. 494), and note. See State v. Milholland, 89 Iowa 5, 56 N.W. 403, and cases collected in 22 Cyc. 624. Of course this is a rebuttable presumption, and decreases in strength as the child increases in years. Martin v. State, 90 Ala. 602 (8 So. 858, 24 Am. St. Rep. 844). But the evidence tended to confirm rather than rebut this presumption; for, while the victim of defendant's lust did not claim force was used, she did testify that he had taught her the Scriptures approved their conduct, or, in her words, "he used to have me read out of the first part of the Old Testament, and pointed out different things in the first part of the Old Testament that he said stood up and said it was right for us to do that way." In the absence of any evidence tending to overcome the presumption of incapacity to appreciate the wrong she was doing, it cannot be said that she was an accomplice. It follows that the court did not err in omitting to instruct on the subject of corroboration.
II. While the child was shown to have been defendant's daughter, no proof was introduced that her mother was defendant's wife; nor was this necessary. The word "daughter" plainly is employed in section 4936 of the Code as indicating relationship without reference to whether it is legitimate or not. See 2 Wharton's Crim. Law, 834.
III. In the eighth instruction the court told the jury that other acts of undue familiarity could be considered as tending to prove that occurring in the river, and, unless he...
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