State v. Hector

• Decision Date: 10 December 1912
• Citation: 158 Iowa 664,138 N.W. 930
• Parties: STATE v. HECTOR.
• Court: Iowa Supreme Court

158 Iowa 664

138 N.W. 930

STATE

v.HECTOR.

Supreme Court of Iowa.

Dec. 10, 1912.

Appeal from District Court, Pottawattamie County, at Avoca; E. B. Woodruff, Judge.

Defendant was indicted, tried, and convicted of the crime of seduction and appeals. Reversed.A. L. Preston, of Avoca, and John P. Organ, of Council Bluffs, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

DEEMER, J.

At the time the crime is said to have been committed, Minnie Peterson, the prosecutrix, was about 16 1/2 years of age, and defendant was just past 18. Each lived at the home of his parents in the town of Walnut in Pottawattamie county, Iowa, and within a short distance of each other. Prosecutrix came into town with her parents in the year 1905, and during the fall of that year she first met the defendant. The seduction is said to have occurred in June of the year 1906. At that time defendant was attending the public schools; but prosecutrix had ceased going to school and was living at home. She met the defendant, so she says, about three times in the year 1905 and the same number of times during the year 1906 before the seduction was actually accomplished. She says that this occurred on the 8th or 9th day of June, 1906, and was the result of defendant's making love to her, hugging and kissing her, and stating that it was all right to have sexual intercourse, that other girls did, that no harm would come of it, and that if there did he would marry her. She also testified that as the result of the intercourse a child was born to her on February 26, 1907.

[1] On direct examination prosecutrix gave the following testimony: “Q. He was your beau? (Objected to as incompetent and asking for the conclusion of the witness. Overruled. Defendant excepts.) A. Yes, sir. Q. And you never had any other young man about you or with you, did you, before or up to that time? A. Yes, sir; I had been with Mr. Walters before, I remember. Q. And any others? A. No, sir; not that I can think of. Q. Was there any other young man with you so frequently as this young man, the defendant here? (Objected to. Not answered.) Q. What I want to know is whether or not this young man, the defendanthere, was your--was the fellow that was with you, as you folks tell it, whether he was your fellow? (Objected to as incompetent, leading, suggestive, and asking for an opinion and conclusion of the witness. Overruled. Defendant excepts.) A. Yes, sir; I loved him better than anybody else.” On cross-examination the witness was asked as to her going with other young men, naming them, before June of the year 1906; but objections to the questions because not cross-examination and immaterial were sustained. In this there was manifest error. The matter was clearly cross-examination and the testimony material.

[2] We extract the following from the record in order that another proposition relied upon by appellant may be understood: “Exhibit 1 is the statement I signed about this matter in the grand jury room, when it was under investigation. At that time, I didn't say that the defendant said to me that he would marry me in the event that I became pregnant, or that he would take care of me in the event that I got into trouble in that way, or anything of that kind, because they didn't ask me. I think it was Mr. Hess who was asking the questions in the grand jury room. He didn't ask me there if Harry Hector had at any time promised to marry me or anything of that kind. And I didn't reply, ‘No, it was never mentioned.’ I don't think he ever asked me that. Before I went to the grand jury room, I saw Mr. Hess at Walnut and talked with him quite a while. Q. Didn't he also at that time ask you if Harry Hector hadn't promised to marry you during some of these times? Or something of that kind? Didn't he ask that repeatedly, and didn't you say that there was nothing of that kind occurred? (Objected to as not proper cross-examination, incompetent, immaterial, and privileged.) Court: You are referring to the grand jury? Defendant's Counsel: I am referring to a time prior to the session of the grand jury; not in the grand jury room, but at her home in Walnut. It is admitted by defendant's counsel that Mr. Hess at the time was county attorney of Pottawattamie county. (The objection was sustained upon the grounds that it was privileged communication, to which ruling the defendant excepted.) Q. At the time Mr. Hess was talking with you (referring to the conversation at Walnut), is it not a fact that it was not with reference to any prosecution of a criminal case against the defendant, but with reference to another feature of the case? (Objected to as not cross-examination, immaterial, incompetent, and a privileged communication. Sustained. Defendant excepts.) Q. Is it not a fact that, subsequent to the indictment in this case, Mr. Hess, the county attorney, talked with you about this particular case, and about this particular feature of the case, as to what deception or art was practiced upon you at the time of the alleged seduction, and at that time didn't you say to him, in substance, that the only thing he did or said was to make love to you, and to make other statements to you, but that he said nothing about marriage or about protecting you in that way, and that was not the subject of your talk with Harry Hector at any of the times when you were in his company? (Same objection as to the previous question. Sustained. Defendant excepts.) A. I was in the grand jury room only once while the matter was under investigation. I talked with Mr. Turner and Mr. Cullison this week about my testimony, at Mr. Turner's office. I think my father was there. Q. In the conversation with reference to what your testimony in the case would be, wasn't your attention called to the fact that in your testimony before the grand jury you had made no reference to any promise of marriage or the like? (Objected to as incompetent, immaterial, irrelevant, not cross-examination, and privileged. Sustained. Defendant excepts.) Q. And at that conversation, wasn't it suggested to you that that must have been said to you, or that something of that kind was necessary in the case? (Same objection as to the previous question. Sustained. Defendant excepts.) You said that when you were before the grand jury that the reason that you didn't say anything about the promise of marriage or the like was because it was not asked of you. Now I want to know who first asked you that question? (Same objection as to the previous question. Sustained. Defendant excepts.) A. The only persons I talked with concerning my testimony in this case is Mr. Cullison, Mr. Turner, Mr. Hess, and Mr. Jones of Des Moines; the last named being a lawyer at that place.”

The various rulings here shown are assigned as error. That the entire matter may be fully understood, it should also be stated that the then county attorney, Hess, was called as a witness for the defendant, and this extract from the record discloses what happened: “I was in attendance upon the grand jury here in Avoca at the April or May term, 1907, when the matter of the charge against Harry Hector in this case was being presented to the grand jury. I think it was in May, and I was in attendance upon the grand jury at that time. Exhibit A is the indictment in this case, and the writing thereon and the minutes of testimony, excepting the signatures, and the writing on the back of the indictment, are in my handwriting. At that time I acted as clerk of the grand jury in so far as I made the memoranda of the testimony of the witnesses which was afterwards attached to the indictment. I remember the prosecuting witness being before the grand jury at that time. Q. I will ask you to state whether or not the prosecuting witness was asked at that time and place anything with reference to the question whether or not the defendant, Harry Hector, had made any promise of marriage to her in connection with her other testimony in which she said that he had sexual intercourse with her? (Objected to as incompetent, immaterial, and privileged.) In connection with this same matter and on this objection, the witness further testified the grand jury was at the time receiving evidence in this case and in other cases from different witnesses. A. The grand jury was in session and duly organized, and I was propounding most of the questions, and occasionally a grand juror might ask one, but I was propounding practically all of the questions. In connection with this same matter, and the objection urged thereto, the following question was put: Q. Now at this time, and while the grand jury was so organized, were there any questions asked by you of the prosecuting witness, Minnie Peterson, as to whether or not, at the time she claims she had been seduced by Harry Hector, that prior thereto, whether or not there had been any promise of marriage by him to her in connection with the seduction? To this the same objection was urged by the counsel for the state as to the previous question, and by permission of the court, on his examination, testified that he was before the grand jury at that time as the county attorney. The court thereupon sustained the objections made to the previous questions upon the grounds that the prohibition of the statute, section 4608, applied to the county attorney, and the same was privileged, and thereupon defendant excepted to the ruling of the court. Q. What, if anything, did Miss Peterson say at that hearing before the grand jury with reference to the question or fact as to whether Harry Hector had made her any promise of marriage, or promise to protect her in the event anything should go wrong or anything of that kind? (Objected to as immaterial, incompetent, and privileged. Sustained, and defendant excepts.) Q. At that hearing did you ask her...