State v. Kirkpatrick

• Decision Date: 03 June 1884
• Citation: 19 N.W. 660,63 Iowa 554
• Parties: THE STATE v. KIRKPATRICK
• Court: Iowa Supreme Court

19 N.W. 660

63 Iowa 554

THE STATE v. KIRKPATRICK

Supreme Court of Iowa, Des Moines

June 3, 1884

Appeal from Decatur District Court.

THE indictment, omitting the formal part, is as follows:

"The said Wm. A. Kirkpatrick, on the first day of January, in the year of our Lord one thousand eight hundred and eighty-two in the county aforesaid, and on divers other days and times between said day and the finding of this indictment, the said defendant and one Mary J. Collins, a female, he, the said defendant, not being married to said Mary J. Collins, did then and there unlawfully, lewdly and viciously cohabit and associate together, and he, the said defendant, and said Mary J. Collins did then and there lewdly and viciously cohabit and associate together as man and wife, contrary to law."

The jury found the defendant guilty, and judgment was rendered on the verdict. The defendant appeals.

AFFIRMED.

McIntire Bros., for defendant.

Smith McPherson, Attorney-general, for the State.

OPINION

SEEVERS, J.

I.

The court instructed the jury that it was sufficient if they found that the defendant and Mary J. Collins, "within three years prior to the finding of the indictment, did lewdly and viciously associate and cohabit together," etc. The objection made to this instruction is that under the indictment the time should have been limited to the day named in the indictment and afterwards. Ordinarily the time the offense is committed, as stated in the indictment, is not material; but it is competent to prove the commission of the offense to have been prior thereto, provided such time is within the statute of limitations. This is conceded by counsel for the defendant, but he says that this cannot be the rule in this case, because the crime is charged to have been committed on a day certain, and on divers days afterwards, prior to finding the indictment. No authority is cited which sustains this distinction; and we do not think the point is well taken. The indictment charges that the offense was committed on a day certain, and afterwards; that is, both on said day and afterwards. If the latter allegation had not been made, the state would not have been confined to the day named, but could have introduced evidence tending to show that the crime had been committed both before and after the day stated in the indictment. The fact that an allegation is made which was unnecessary, and to sustain which evidence could be introduced if it had not been made, should not cause the rejection of such evidence. We think the instruction correct.

II. The third and fourth paragraphs of the charge are as follows:

"3. The burden of the offense is the open, lewd, lascivious conduct of the parties living together as husband and wife. It is the publicity and disgrace, the demoralizing and debasing influence, that the law is designed to prevent. If, therefore, you find from the evidence in this case that the defendant and said Collins lived together in the same house, in the relation of master and servant, and not as husband and wife, and that they only had occasional acts of sexual intercourse, and these in a secret manner, such facts alone would not be sufficient to constitute the crime charged against defendant in this case.

"4. But the crime charged may be shown by circumstances, in connection with the other evidence in the case, it such circumstances are sufficient in connection with such other evidence to satisfy you beyond a reasonable doubt that the crime has been committed, as charged in the indictment, under these instructions; and, in determining whether said parties were or were not living together as husband and wife, it is proper for you to consider any and all acts of sexual intercourse, if any have been shown by the evidence; the fact, if you find it to be a fact, that a child was born to said Collins while she was living with defendant; and all other facts and circumstances disclosed by the evidence as surrounding the parties while living together."

The third instruction is objected to on the grounds that it is argumentative, and in the nature of a lecture on morals, and assumes the condition upon which the defendant and Mary J. Collins lived and cohabited together. In this we do not concur. The instruction as a whole is favorable to the defendant, and the legal proposition announced in terse and proper language. The objections of counsel are without merit, and this is clearly demonstrated by a simple reading of the instruction. The fourth instruction is also objected to because it "assumes that there was other evidence given in this case outside of circumstantial." From the argument of counsel we infer that he means that it was improper to call attention to the birth of a child and acts of sexual intercourse, which were established by positive evidence, because neither has any tendency to prove the relation existing between the parties. It is sufficient at present to say that we do not concur in this proposition. The instruction is further objected to because it conflicts with The State v. Marvin, 12 Iowa 499. The third instruction is evidently based on that case, and is in accord therewith; and we are unable to see that there is any conflict between them.

III. It is contended that the verdict is against...