State v. Hasty

• Decision Date: 23 October 1903
• Parties: STATE OF IOWA v. J. C. HASTY, Appellant
• Court: Iowa Supreme Court

96 N.W. 1115

121 Iowa 507

STATE OF IOWA v. J. C. HASTY, Appellant

Supreme Court of Iowa, Des Moines

October 23, 1903

Appeal from Keokuk District Court.--HON. A. R. DEWEY, Judge.

THE defendant was convicted of having committed adultery, and appeals.

Affirmed.

Brown & Brown, Stockman & Hamilton and B. W. Preston for appellant.

Chas W. Mullan, Attorney General, and Chas. A. Van Vleck Assistant Attorney General, for the State.

OPINION

LADD, J.

The victim of defendant's lust was an unmarried woman, and counsel's first contention is that owing to this fact he was not guilty of the crime of adultery. The statute, as it stood in Code 1873, read: "Every person who commits the crime of adultery, shall be punished by imprisonment in the penitentiary not more than three years, or by fine not exceeding $ 300 and imprisonment in the county jail not exceeding one year; and when the crime is committed between parties only one of whom is married, both are guilty of adultery and shall be punished accordingly. No prosecution for adultery can be commenced but on the complaint of the husband or wife." Section 4008, Code 1873. The words "both are guilty of adultery and" were omitted from the Code of 1897. Adultery at the common law was not denounced as a crime. As the basis of a civil right of action it consisted only of a man having sexual intercourse with a married woman other than his wife, thereby introducing the danger of spurious issue of the marriage. Connection with a single woman, though fornication, was not adultery. The same rule seems to have obtained under the Roman law, but was radically modified by the ecclesiastical courts, which denounced the offense as the sexual violation of the marriage relation, regardless of whether the offender was male or female. And the definition of the canonial law, according to Wharton, was accepted by every Christian state at the time of the colonization of America, and "is no doubt a part of the common law brought with them by the colonists of all Christian nationalities." 2 Wharton on Crim. Law, section 1719. It has been generally so defined in statutes authorizing divorce because of adultery. 1 Bishop on Marriage and Divorce, section 703. Pickett v. Pickett, 27 Minn. 299 (7 N.W. 144); Commonwealth v. Call, 38 Mass. 509, 21 Pick. 509 (32 Am. Dec. 284); Mosser v. Mosser, 29 Ala. 313. The decree is granted owing to the fault of the offending party in the violation of the marriage contract, and sexual intercourse by a husband with an unmarried woman is quite as much a violation of the contract and the marital rights of the wife as it would be if committed with a married woman. See Aitchison v. Aitchison, 99 Iowa 93, 68 N.W. 573. It is also to be observed that the word "adultery" in its ordinary use has precisely the meaning accorded to it by the ecclesiastical courts. The statutory offense is regarded as primarily against the family, and only incidentally in its consequence to the public. State v. Roth, 17 Iowa 336. It would seem necessarily to follow that the status of the particeps criminis in that view would be of no importance. Moreover, the statute as it formerly stood denounced the offense as it was defined by the canonical law. And the elimination of the words "both are guilty of adultery" ought not to be construed to change its meaning, for the clause "both shall be punished" is retained. For what punished? Manifestly the crime forming the subject of the section. The statute proceeds on the theory that adultery consists in the sexual connection between a man and a woman, of whom one is lawfully married to a third person, and directs punishment accordingly. Were it not for the requirement that both be punished when one is unmarried, the latter might escape under the last clause prohibiting prosecution save on complaint of the spouse.

II. It appears that the evidence of certain witnesses was by agreement taken down in shorthand, subsequently extended and filed by the committing magistrate with the papers in the clerk's office. This evidence was considered by the grand jury, and the indictment based in part thereon. The names of such witnesses were not indorsed on the back of the indictment, nor were minutes of their evidence attached thereto. On these grounds defendant moved that the indictment be set aside. Section 5276 of the Code requires that upon the finding of an indictment "the names of all witnesses on whose evidence it is found must be indorsed thereon before it is presented to the court, and must be, with the minutes of the evidence of such witnesses, presented to the court." Unless this is done, or proper notice given, such witnesses may not be called, as section 5373 of the Code prohibits the county attorney from introducing "any witness who was not examined before a committing magistrate or the grand jury, and the minutes of whose testimony were not presented with the indictment," without the service of the notice prescribed. These sections contemplate the indorsement on the back of the indictment of the names of all witnesses upon whose testimony the finding of the grand jury is based. No distinction whatever is drawn between those actually before the grand jury and those the minutes of whose testimony only is examined. The motion to set aside the indictment is to be sustained "when the names of all the witnesses examined before the grand jury are not endorsed thereon; when the minutes of the evidence of the witnesses examined before the grand-jury are not returned therein." Were the witnesses the minutes of whose testimony only were before the grand jury "examined" within the meaning of the statute? We think so. The grand jury necessarily passed upon their credibility as though present. In this sense they were examined by that body. The intention of the lawmakers, as gathered from the several sections of the Code from which we have quoted, seems to have been that the names of the witnesses upon whose testimony the indictment is based, and the nature of their evidence, should be made known to the accused in advance of the trial. This is obvious from the provision of the next section, that the motion to set aside shall not be sustained if the indorsement of names is corrected and the omitted minutes of evidence are attached under the supervision of the court. Section 5320, Code. Of course, it must appear that the evidence given was material, and the state rightly insists that there was no showing of the materiality of the evidence of the witnesses whose names did not appear on the back of the indictment. This was essential. State v. Little, 42 Iowa 51; State v. Lewis, 96 Iowa 286, 65 N.W. 295. The defendant cannot complain of the omission of evidence having no bearing on the trial against him, or of the names of those giving such evidence, from the indictment; and, before the motion to set aside will be sustained, the materiality of the evidence given by the witnesses whose names have been omitted must affirmatively appear.

III. The minutes of the evidence attached to the indictment indicated that Mrs. Hasty would testify to having seen defendant engaged in sexual intercourse with Olive White in a barn on his farm within the time fixed by the statute of limitations. She did in fact so testify on the trial, and hers was the only direct testimony of the commission of the offense. A motion for continuance on the ground of the absence of witnesses who would testify that on several occasions she had stated out of court, in substance, "that she could not swear she had seen them [defendant and Olive] do anything wrong, but she saw a transaction in the barn that looked suspicious," was overruled. The affidavit shows affirmatively due diligence as to three of the witnesses, and that they would likely recover from sickness in time to attend the next term of court. Proof of the sickness of John Bowen did not establish the inability of Mrs. Bowen to attend the trial as a witness, as, for all that appears, another might have cared for him during her absence. The above statement is said to have been first made in presence of these persons and Mr. and Mrs. Ollis, the last of whom, as well as Bowen, were unable to be present at the trial. But it affirmatively appeared that Mrs. Bowen and Ollis were competent witnesses to the statement, and the latter did in fact testify fully thereto. The motion also indicated that at another time substantially the same statement was made in presence of Mr. and Mrs. King, and that the latter would be unable to be present at the trial. But King testified thereto as asserted his wife would. It thus appears that the proposed evidence was both cumulative and impeaching in character, and the motion so indicated. That the evidence of witnesses because of whose absence a continuance is asked would be merely cumulative is generally regarded as a valid objection to the application. People v. Jenkins, 56 Cal. 4; Clement v. Newton, 78 Ill. 427; Wilkerson v. Commonwealth, 88 Ky. 29, (9 S.W. 836); State v. Rodrigues, 45 La.Ann. 1040, (13 So. 802); Dillingham v. Ellis, 86 Tex. 447, (25 S.W. 618); Corbin v. People, 131 Ill. 615 (23 N.E. 613). This is the ground of the statutory requirement that the affidavit must set forth that affiant knows of no other witness by whom the alleged facts may be fully proven. But notwithstanding that the evidence to procure which a continuance is sought may be cumulative, it may happen that the interests of justice, which are made by the statute of controlling importance, will be promoted by a postponement for its production. Thus, when the direct evidence of a transaction under investigation is in conflict, the issue is often determined by the number of witnesses, and in such a case the objection that the evidence is cumulative...