State v. Lowell
| Decision Date | 05 April 1904 |
| Citation | 99 N.W. 125,123 Iowa 427 |
| Parties | STATE OF IOWA, Appellee, v. DEMMON LOWELL, Appellant |
| Court | Iowa Supreme Court |
Appeal from Buchanan District Court.--HON. A. S. BLAIR, Judge.
BASTARDY proceedings to charge the defendant with the expense of maintaining an illegitimate child, born to one Carrie Kujadt. It is claimed that the defendant is the father of the child. This he denied, and on the issue thus joined the case was tried to a jury, resulting in a verdict and judgment of guilty. Defendant appeals.
Reversed.
E. E Hasner for appellant.
H. W Holman for appellee.
But two questions are presented on the appeal--one the failure of the court to give an instruction asked by the defendant, and the other the correctness of the court's ruling in denying a petition for a new trial, filed by the defendant, based upon newly discovered evidence.
The instruction asked was to the effect that, if the prosecutrix made no complaint of the alleged intercourse with defendant at any time, such fact should be taken into account as affecting her credibility as a witness. It will be observed that this is a bastardy proceeding, and not a prosecution for rape. Such being the situation, the fact that the prosecutrix made no complaint of the alleged intercourse is a wholly immaterial matter, particularly so where, as in this case, there is no such showing as would have justified a submission of the crime of rape to a jury, had the charge been rape. The sole question here is the paternity of the child. Complaints made by the prosecutrix, which are in the nature of self-serving declarations, are not ordinarily admissible. An exception to the rule prevails in rape cases, but the presence or absence of complaints in such an action as this does not come within the exception. The procedure in this form of action is that which obtains in ordinary civil actions, and the rules of evidence are the same; hence declarations of the prosecutrix are not admissible. State v. Spencer, 73 Minn. 101 (75 N.W. 893); Ramey v. State, 127 Ind. 243 (26 N.E. 818). If not admissible for her, the fact that she fails to complain should not be considered against her. Moreover, there is no such showing in the evidence as would make the alleged intercourse rape.
II. At the trial the prosecutrix, her father, and her mother testified that she went to defendant's house to work for the family, the last part of September or the first of October, 1901, and that the alleged intercourse occurred about three weeks thereafter. The child was born on July 23, 1902. Defendant's testimony tended to show that the girl came to his place on August 18, 1901; that she was there on September 1st, and left on September 9th. This was for the purpose of showing that, according to the ordinary period of gestation, he could not have been the father of the child. We do not know, of course, what the conclusion of the jury was on this matter, but may well assume that it found the version of the affair as given by the state's witnesses correct. The verdict was returned on the 4th day of December, 1902. Thereafter defendant filed a petition for a new trial, based on the ground of newly discovered evidence. This petition came on for hearing at the May term, 1903, of the district court, and, after hearing the evidence introduced in support thereof, the trial court denied the same, and of this complaint is made.
The evidence offered in support of this petition clearly shows that the prosecutrix went to defendant's house on August 25, 1901. This was finally admitted by the prosecutrix herself, after hearing the testimony of the witness whose evidence it is claimed was newly discovered. This witness testified that he fixed the time with reference to his mother's birthday celebration, which occurred on August 25, 1901; that he met the father and the mother of the prosecutrix on that day, and that they told him their daughter was going to defendant's place on that day. On this hearing prosecutrix admitted that she went to defendant's place on August 25, 1901. It was also shown that, before the trial of the case, prosecutrix's mother asked the witness whose evidence it is claimed was newly discovered as to the date of the birthday celebration. The witness said that he gave her the exact date, but the mother testified that his answer was that he did not know. From the evidence offered in support of the petition for a new trial it now clearly appears that the prosecutrix went to defendant's...
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