State v. Heft
| Decision Date | 05 March 1912 |
| Citation | 134 N.W. 950,155 Iowa 21 |
| Parties | THE STATE OF IOWA v. JOHN HEFT, Appellant |
| Court | Iowa Supreme Court |
Appeal from Buchanan District Court.--HON. F. C. PLATT, Judge.
UNDER an indictment for incest alleged to have been committed by having carnal intercourse with his daughter, the defendant was tried and convicted and sentenced to imprisonment in the penitentiary. From this conviction the defendant appeals.
Affirmed.
Cook & Cook, for appellant.
George Cosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for the State.
The prosecuting witness testified that at various times and repeatedly from the year 1905 until 1909, in which year this indictment was found, the defendant, her father, had sexual intercourse with her, and that this intercourse resulted in the birth of a child. As to two or three of these acts of intercourse, the testimony of the prosecutrix was corroborated by that of her younger sister, and the prosecution, on being required to elect, relied upon an act committed, according to the testimony of prosecutrix, on the 24th day of December, 1908, when she was past seventeen years of age. As to this particular transaction, her testimony was corroborated by that of her sister, which tended to show that the intercourse was without the consent of the prosecutrix and brought about by threats of violence on the part of the defendant. The defendant testified in his own behalf, denying all acts of intercourse and all improper relations with the prosecutrix, and imputing to her conduct tending to show improper relations with boys of about her own age. There was also testimony for defendant as to his physical characteristics and those of the mother of the prosecutrix and of the prosecutrix herself and her brothers and sisters, and a stipulation as to the color of the hair of the infant born to the prosecutrix, on which physicians, testifying as experts in the matter of heredity, predicated answers to hypothetical questions indicating a high improbability that the infant was the result of intercourse between prosecutrix and her father. There was also testimony as to the good moral character of the defendant in the community.
It appears that in February, 1909, this defendant was indicted for rape committed upon his daughter Clara, a girl under fifteen years of age at the time the alleged offense was committed, and that in this prosecution the daughter Minnie, who is the prosecutrix in the present case, was a witness for the state. In that case the defendant was convicted, but on appeal the conviction was set aside on the ground that the record did not show the corroboration required in a prosecution for rape. State v. Heft, 148 Iowa 617, 127 N.W. 830. At the same term of court, and by the same grand jury which returned an indictment charging the defendant with rape on his daughter Clara, an indictment was returned charging incest with the daughter Minnie, and after the reversal in the other case, and at the February term, 1911, the defendant was put on trial under that indictment. It further appears that before the defendant was put on trial, though whether at a preceding term or at that term is not made to appear, a motion to set aside the indictment for incest, on grounds not stated in the record, was overruled and a demurrer to the indictment on the ground that it did not sufficiently charge the commission of a crime was filed, which had not been ruled upon by the court when the trial was had. The record does not show an arraignment of the defendant nor the interposition of any plea by him, but it does show that, after the jury was selected and sworn, counsel for defendant made an opening statement in his behalf to the effect that the statement of the case by the county attorney in opening was not correct and true, and that, until the state's evidence was introduced, the defendant would not know what he would have to meet. Thereupon the trial proceeded with the introduction of evidence on behalf of the state and on behalf of the defendant.
I. By motion in arrest of judgment after verdict, counsel for defendant raised the question whether under the record showing a demurrer pending at the time the trial was commenced and remaining undisposed of until after the verdict was returned, and failing to show any arraignment of or plea by the defendant, there could be a valid conviction and sentence.
As to the pendency of the demurrer, it is sufficient to say that the grounds therein stated were not such as to justify the court in sustaining it, and that the defendant suffered no prejudice from the failure of the court to make a formal ruling thereon. Of course, the orderly procedure would have been to rule on the demurrer before putting the defendant on trial; and no doubt the court would have made a ruling on the demurrer if it had been called to its attention. But it nowhere appears that the pendency of the demurrer was called to the attention of the court until after the rendition of the verdict, and we are unwilling to hold that this merely technical irregularity in the procedure could vitiate the result of the trial. Insufficiency of the indictment was made a ground of objection in the motion in arrest of judgment, the objections urged in the demurrer being repeated, but counsel have nowhere contended in argument on this appeal that the court erred in holding the objections thus made to the indictment to be without merit. So far as counsel now contend, the indictment was in substance sufficient to charge the crime for which defendant was tried. Under the circumstances, we must hold that no error of which the defendant can complain was committed by putting him on trial without ruling upon the demurrer.
But the real contention for the defendant in this respect seems to be that after demurring to the indictment he was not required to plead, and did not plead, so far as to raise an issue of fact triable to a jury, and that the subsequent proceedings in the nature of a trial without any issue presented to be tried was ineffectual and void, and that no sentence could be passed on a verdict returned in such trial. Many authorities are cited from other states in support of this proposition, and, without referring to these authorities at length, it may be conceded that at common law there can be no conviction under a verdict in a case in which there has been no plea made by the defendant or entered for him raising an issue of fact. Crain v. United States, 162 U.S. 625 (16 S.Ct. 952, 40 L.Ed. 1097); Parkinson v. People, 135 Ill. 401 (25 N.E. 764, 10 L. R. A. 91); People v. Monaghan, 102 Cal. 229 (36 P. 511); State v. Walton, 50 Ore. 142 (91 P. 490, 13 L. R. A. (N. S.) 811), and notes. In this state, however, there has been a consistent effort by legislation and by decisions of the courts in accordance with the spirit of such legislation to avoid the necessity of setting aside verdicts for technical errors or irregularities in the procedure which have been in no way prejudicial to the defendant by depriving him of full opportunity to make defense to the charge presented in the indictment on which he has been tried. It is unnecessary here to refer specifically to the numerous statutory provisions manifestly intended to cut off merely technical objections which do not in any way go to the merits of the case. They are well known to the profession. But specifically with reference to the necessity of a pleading by the defendant it is provided that, if the defendant fails or refuses to plead, a plea of not guilty must be entered by the court (Code section 5336), and our reports from the volume containing the decisions of the Supreme Court of the territory down to the present are full of cases in which it has been expressly held or necessarily assumed that the formal entry of a plea of not guilty is immaterial, where the defendant has in fact appeared and submitted to trial on the charges contained in an indictment. Wau-kon-chaw-neek-kaw v. U. S., Morris, 332; State v. McCombs, 13 Iowa 426; State v. Winstrand, 37 Iowa 110; State v. Foster, 40 Iowa 303; State v. Greene, 66 Iowa 11, 23 N.W. 154; State v. Hayes, 67 Iowa 27, 24 N.W. 575; State v. Jones, 70 Iowa 505, 30 N.W. 750; State v. Bowman, 78 Iowa 519, 43 N.W. 302; State v. Thompson, 95 Iowa 464, 64 N.W. 419; State v. Corwin, 151 Iowa 420, 131 N.W. 659. There are cases to the same effect in other states. State v. Glave, 51 Kan. 330 (33 P. 8); State v. Straub, 16 Wash. 111 (47 P. 227); Hayden v. State, 55 Ark. 342 (18 S.W. 239); Gaines v. U. S., 1 Indian Terr. 296 (37 S.W. 98); State v. Reddington, 7 S.D. 368 (64 N.W. 170); Spicer v. People, 11 Ill.App. 294; Bryans v. State, 34 Ga. 323; Hudson v. State, 117 Ga. 704 (45 S.E. 66); Allyn v. State, 21 Neb. 593 (33 N.W. 212); People v. Osterhout, 34 Hun (N. Y.) 260; People v. McHale, 15 N.Y.S. 496; People v. Bradner, 107 N.Y. 1 (13 N.E. 87); Commonwealth v. McKenna, 125 Mass. 397; United States v. Molloy (C. C.) 31 F. 19.
In short, it appears from the record by affirmative recital or by necessary implication arising out of the presumption of regularity in the proceedings that defendant was properly charged by indictment with the crime of incest; that he was arraigned on this charge; that, being personally present in court and represented by counsel, he consented that the case be tried as on a plea of not guilty, examining jurors as to their qualification to try him for this specific offense, and interposing repeated objections to the evidence offered against him on the ground that it was not admissible on the trial for the specific crime charged; that he introduced evidence to support his defense to the crime charged, testifying himself as a witness; and that not until after...
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