State v. Judd

Citation109 N.W. 892,132 Iowa 296
PartiesSTATE v. JUDD.
Decision Date20 November 1906
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Mitchell County; J. F. Clyde, Judge.

The defendant was convicted of the crime of incest, and appeals. Affirmed.C. D. Ellis, G. E. Marsh, and Roberts & Warner, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, for the State.

LADD, J.

The indictment charged that the defendant “did then and there feloniously have carnal knowledge of one Homer Richardson, the said Homer Richardson then and there being the brother of said defendant's mother.” It is contended that the use of the word “feloniously” is equivalent to charging that the act was done knowingly; i. e., with the knowledge on the part of the defendant of her relationship to Homer Richardson, and that, having so alleged, it was incumbent on the state to prove the allegation as alleged. At the common law the use of the word “feloniously” or its equivalent in charging felony was indispensable to an indictment for felony. Bowler v. State, 41 Miss. 570;Mott v. State, 29 Ark. 148;State v. Williams, 30 Mo. 364;Kaelin v. Com. (Ky.) 1 S. W. 594;State v. Rechintz (Mont.) 52 Pac. 264. The authorities seem to be in conflict as to whether the same rule prevails when the offense is one created by statute. 1 Bishop on Crim. Proc. 534. All that is necessary in this state is to allege the facts constituting the offense in ordinary and concise language with such certainty and in such manner as to enable a person of common understanding to know what is intended and the court to pronounce judgment according to law upon a conviction. Section 5289, Code. And in so doing it is unnecessary to include the word “felonious” or “feloniously” in charging a felony (State v. Griffin, 79 Iowa, 568, 44 N. W. 813); or “burglarious” or “burglariously” in charging burglary (State v. Short, 54 Iowa, 392, 6 N. W. 584). Though unnecessarily inserted in the indictment, however, such words ought to be given no greater effect than would have been accorded them under the common–law system of pleading. As here employed “feloniously” would have imparted no more than that the act charged was a felony and no other significance should be accorded the word under the Code system of pleading in vogue in this state. This is equivalent to saying that, if it is not descriptive of the identity of what is legally essential to the charge in the indictment, the word may be rejected as surplusage. Section 5290, Code. See State v. Newland, 7 Iowa, 242, 71 Am. Dec. 444;State v. Hesner, 55 Iowa, 494, 8 N. W. 329;State v. Verden, 24 Iowa, 126;State v. Bailey, 31 N. H. 521;People v. Myers, 20 Cal. 76.

Even were it to be construed as meaning knowingly or with knowledge there is authority for treating it as surplusage also. 1 Chit. Crim. Law 241; 1 Bishop, Crim. Proc. § 505; Com. v. Squire, 1 Metc. (Mass.) 258. But this we do not determine, as “feloniously” in the connection used cannot be so understood and amounted to no more than saying the crime charged was a felony. Nor, in the absence of that word, was affirmative proof of knowledge on the part of the state necessary in order to convict. Incest appeared to have been a capital offense in the time of the commonwealth in England, but the statute was not renewed at the Restoration, and thereafter it was not an indictable offense, the punishment thereof being relegated to the ecclesiastical courts. State v. Keesler, 78 N. C. 469. The crime is purely statutory, and, as scienter is not included in the definition contained in the section of our Code defining it, it is not an element of the crime and therefore need not be alleged in the indictment nor affirmatively proven in order to justify a conviction. State v. Rennick, 127 Iowa, 294, 103 N. W. 159;State v. Glindemann, 34 Wash. 225, 75 Pac. 800, 101 Am. St. Rep. 1001;State v. Dana (Vt.) 10 Atl. 727;Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. St. Rep. 802. See State v. Newton, 44 Iowa, 45, 16 Am. & Eng. Ency. of Law (2d Ed.) 138; 22 Cyc. 47. State v. Pennington, 41 W. Va. 599, 23 S. E. 918, the point was not involved. Whether proof of absence of knowledge might be shown by way of defense is not raised by the record and therefore is not considered.

2. To prove the relationship of the accused to Homer Richardson one George Nelson testified that he had known defendant 10 years, and during that period she had lived with Byron Judd and wife, and, over objection, was permitted to say that he had heard her “call them father and mother frequently,” had heard her call Homer Richardson “uncle” frequently, and Mrs. Judd refer to Homer Richardson several times as her brother in the presence of defendant. It is urged that this was not the best evidence. Such proof is in the nature of admissions and not open to this objection. That it was admissible is well established by the authorities. State v. Schaunhurst, 34 Iowa, 547;People v. Jenness, 5 Mich. 305;Morgan v. State, 11 Ala. 289;Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672.

It is also contended that even though admissible the evidence was insufficient to establish relationship, and, for this reason, the motion to direct a verdict of acquittal at the close of the state's evidence should have been sustained. Doubtless many persons are addressed as father or mother or uncle who do not sustain that relation. On this account the effect to be given the use of such terms, when applied to particular persons, necessarily depends much upon the surrounding circumstances. The relationship of a daughter, however, may well be inferred from long residence with another whom she habitually addresses as mother and that of uncle from frequent reference to him as such by the accused and of the mother in her presence as brother.

3. John Richardson, witness for the accused, testified, on cross–examination, that he was a brother of Homer Richardson and uncle of defendant. This was admissible as showing the relationship of the witness to the party as affecting his credibility and this although the answer might have some bearing on the issue of relationship. The latter might furnish ground for limiting the consideration of the evidence to the credibility of the witness but would not justify excludingit. Evidence of undue intimacy or of intercourse prior to that charged was admissible. State v. Hurd, 101 Iowa, 391, 70 N. W. 613;People v. Koller, 142 Cal. 621, 76 Pac. 500;State v. More, 115 Iowa, 178, 88 N. W. 322;State v. King, 117 Iowa, 484, 91 N. W. 768.

4. A witness freely admitted her feelings against defendant on cross–examination, and said that she had grieved that defendant and her people lived next door to her; that she had said that she would like to get the family out of the town and had talked with her husband about it, and, if this...

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2 cases
  • State v. Rankin, 53527
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 1970
    ...state failed to prove penetration as required by State v. McCall (1954), 245 Iowa 991, 995, 63 N.W.2d 874, 876, and State v. Judd (1906), 132 Iowa 296, 301, 109 N.W. 892, 894. There is no merit in this The testimony of prosecutrix ('It hurt in my vagina. It hurt in my tummy a little.') is c......
  • State v. Judd
    • United States
    • United States State Supreme Court of Iowa
    • November 20, 1906

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