State v. Hemm

• Decision Date: 23 May 1891
• Citation: 82 Iowa 609,48 N.W. 971
• Parties: STATE v. HEMM.
• Court: Iowa Supreme Court

82 Iowa 609

48 N.W. 971

STATE

v.HEMM.

Supreme Court of Iowa.

May 23, 1891.

Appeal from district court, Davis county; CHARLES D. LEGGETT, Judge.

Indictment for seduction. Verdict of guilty, and a judgment, from which the defendant appealed.Payne & Eichelberger, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

GRANGER, J.

1. The indictment charges that the defendant “did * * * seduce, debauch, and carnally know one Mary E. Starner, the said Mary E. Starner being then and there an unmarried female of previous chaste character,” etc. The language of the statute is: “If any person seduce and debauch an unmarried woman,” etc. It is urged that the indictment is defective because the offense is charged as committed against a “female,” and not a “woman.” It is true that, comprehensively considered, the term “female” is generic, and includes a variety of species, while the word “woman” has a more limited signification, being of the human race. The two words, therefore, may have the same signification, depending on the subject considered and their relation thereto. “Seduction,” in its criminal sense, relates to persons. It has no other known application. The term “female,” in an indictment charging the crime of seduction as having been committed against her, would unmistakably indicate a woman. That would be its common application. The statute provides that “the words used in an indictment must be construed in their usual acceptation in common language.” Code, § 4303. Of course, in applying the statute, the connection in which the words are used is not to be disregarded. The statute, in providing what an indictment must contain, says: “(2) A statement of the facts * * * in such a manner as to enable a person of common understanding to know what is intended.” Any person divesting himself of a desire for something wrong, and with a disinterested purpose, who reads the indictment in the light of a common understanding, will know that the term “female” used therein means a woman. The indictment further aids a person to know what is intended by the allegation that she is “unmarried,” and that her name is “Mary E. Starner.” Conceding, as urged in argument, that “the racing mare” has a name, and is unmarried, and we think the common understanding would not be led astray. It is said that “an unmarried female” and “an unmarried woman” are not equivalent terms. Possibly not, in a strictly technical sense, but to the practical common understanding they are of like meaning, and interchangeable. The term “married” or “unmarried” has no application to the brute creation. The alleged defect in the indictment could not affect a substantial right of the defendant, and we are told in the statute, in a case of this kind, to “examine the record * * * without regard to technical errors or defects, which do not affect the substantial rights of the parties.”

2. The burden of the complaints in the case is directed in different ways to questions of law and fact pertaining to the previous character of the prosecutrix for chastity. Defendant used several witnesses, who testified to particular acts and habits of the prosecuting witness, Mary E. Starner, showing that she was, to some extent at least, in the habit of using profane and vulgar, if not obscene, words and remarks, which we do not think it necessary to set out in the opinion. This evidence is uncontradicted, and indicates strongly to us that she is a person wanting in both culture and refinement. It is insisted to us that the evidence, without contradiction, shows that she was not of previous chaste character. Without saying that no condition of the record, in such a case, would justify us in holding, as a matter of law, that the state was precluded from a conviction against the findings of a jury, we may say that the record in this case would certainly not justify it. It is by no means conclusive as against the presumptions of the law in her favor that she was not of unchaste character. Appellant urges that after his evidence was introduced it changed the presumption of law so that the burden shifted to the state to furnish evidence to counteract or overcome its force. But we know of no rule by which the burden, in the progress of a trial, is thus changed, (except, perhaps, in cases of fraud and the like, in civil proceedings,) and we think, in this case, it was, after the evidence was introduced, a question of fact for the jury whether the presumption of the law in favor of the prosecutrix was overcome by the acts proved. The law does not definitely determine the facts or attributes essential to a chaste character within the meaning of the statute. Just the extent of profanity or obscenity in the use of language that would so fix the condition of mind and heart in a woman that the law would withdraw from her its protecting arms as against the seducer can be with better results, in the administration of the law, left as a question o fact for the jury than to an arbitrary measurement under legal rules by the court. It is said in State v. Andre, 5 Iowa, 389, that the jury are the sole judges, in each case, who come within the description, having said that the statute is for the protection of the “pure in mind, for the innocent in heart.” It is further said, in the same case, that “no particular amount or degree of such manners or conversation can be set down as conclusive evidence of an unchaste character.” To hold that because of a failure on the part of the state to introduce evidence to rebut that of the defendant on the question of chastity a want of chastity is shown would be to hold that the facts shown by the defendant as to the conversation and manners of the prosecutrix are conclusive upon that question, which the rule long since announced forbids.

3. The defendant asked several instructions bearing on the question of the chaste character of the prosecutrix, all of which we cannot particularly notice, nor need we to the extent of comment; but the following is one which it is said “surely em bodies the law on that question.” It is as follows: “The defendant has offered evidence, as he claims, of specific language and conduct on the part of the prosecutrix which, he claims, show her to be of unchaste character at the time of the alleged seduction, and you are instructed that it was the right of the state to introduce evidence of the general reputation for chastity of Mary E. Starner, as rebutting the testimony offered by defendant.” Upon the issue of chastity the burden was with the defendant to show a want of it. Appellant introduced evidence which, he says, established certain facts without dispute. Why should he complain that his facts were not questioned by evidence? He certainly had the full benefit of them if undisputed. The state had the right on that issue, with the burden on the defendant, to submit on the defendant's own evidence. Unless by law some consequences should or might follow the neglect to introduce evidence as to general reputation, it had no place in the court's instructions. The instruction asked fixes no consequences as a result of the neglect, and, had it been given, the jury would have been without a rule as to how the fact should affect its action. To our minds the effect of the instruction would have been to confuse or mislead the jury, and was properly refused. The instruction has no support in State v. Prizer, 49 Iowa, 534. The court's instructions so clearly cover the points presented in the other instructions asked and refused on this branch of ...