State v. Kouhns
| Decision Date | 15 December 1897 |
| Parties | STATE OF IOWA v. ANDREW KOUHNS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. B. P. BIRDSALL, Judge.
THE defendant was indicted for the crime of incest, and was convicted, and sentenced to the state penitentiary for the term of five years. He appeals.
Affirmed.
Dyer & Stevens for appellant.
Milton Remley, attorney general, and Jesse A. Miller for the state.
I.
The defendant was charged with having committed the crime of incest with his daughter Mattie Kouhns. The daughter testified that defendant took her by the arm, and said that he would whip her if she did not do what he wanted her to do that she cried; that she said nothing; that he took her and threw her on the ground, and had intercourse with her; that she afterwards became pregnant, and was delivered of a child that she never had intercourse with any other person; that she told defendant that she was pregnant, and he denied the paternity of the child. The defendant denies having had connection with his daughter Mattie,--in fact, denies all of the statements. It is contended that the verdict is supported only by the uncorroborated evidence of the complaining witness, and the argument is that in this case there can be no conviction unless her testimony is corroborated. Section 4560 of the Code of 1873 provides that "the defendant in a prosecution for rape, or for enticing or taking away an unmarried female of previously chaste character for the purposes of prostitution, or aiding or assisting therein, or for seducing and debauching any unmarried woman of previously chaste character, cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense." Section 4559 provides: "A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense of the circumstances thereof." The crime of incest is not mentioned in section 4560 as one wherein a conviction is dependent upon corroboration. Counsel argue that the evidence required to convict should be the same in case the crime charged is incest as in the cases expressly mentioned in the statute. If that should be conceded, it would furnish no ground for this court's ingrafting something upon the statute which is not provided for therein. The legislature has not seen fit to require corroboration of the complaining witness as a prerequisite to conviction of the crime of incest, and therefore such corroboration is not necessary. In the case referred to by counsel the question of the necessity of corroboration in such a case was not raised. It was therein insisted that the evidence of the prosecutrix was not corroborated, and this court held that it was, without determining the necessity for corroboration when the crime charged was incest. Under the section of the Code of 1873 last quoted, it is contended that the complaining witness was an accomplice, and hence no conviction could be had in the absence of corroboration. But we have held that the woman with whom one has incestuous intercourse is not necessarily an accomplice. State v. Chambers, 87 Iowa 1, 53 N.W. 1090; State v. Hurd, 101 Iowa 391, 70 N.W. 613. If it should be conceded that, if the intercourse was voluntary on part of the prosecutrix, she would be an accomplice, still we have no such case before us. The prosecutrix in the case at bar was some fifteen or sixteen years of age, and it appears from her evidence that the defendant accomplished the act by threats and force. There could therefore have been no acquiescence on her part, and under such circumstances it cannot be said that she is an accomplice. State v. Chambers and State v. Hurd, supra. Nor is it material that under the facts the acts would also constitute rape. A conviction may be had of the crime of incest although the facts show that the acts would also constitute rape. State v. Hurd, supra. It appears, therefore, that in such a case no corroboration is necessary. There is evidence,--though, perhaps, not very conclusive,--which corroborates the prosecutrix. Under our view of the law, the jury might find the defendant guilty, in the absence of all corroborating evidence, if they believed from the evidence that his guilt was established beyond a reasonable doubt. Without entering into a further discussion of the evidence, it is sufficient for us to say that, after a careful examination of the entire record, we are constrained to hold that the evidence was ample to support the verdict.
II. The county attorney, in the course of the examination of witnesses, said, in the presence and hearing of the jury "I understand that to show sexual intercourse of the defendant with any other daughter is corroborative of the fact that he had sexual intercourse with the complaining witness in this case, and that he had sexual intercourse with the complaining witness another time is corroborative evidence." Now, this statement was made just following a ruling by the court striking...
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