State v. McClintic

• Decision Date: 21 December 1887
• Citation: 73 Iowa 663,35 N.W. 696
• Parties: STATE v. MCCLINTIC.
• Court: Iowa Supreme Court

73 Iowa 663

35 N.W. 696

STATE

v.MCCLINTIC.

Supreme Court of Iowa.

December 21, 1887.

Appeal from district court, Henry county; A. H. STUTSMAN, Judge.

Indictment for seduction. Trial by jury. Verdict guilty, and judgment. The defendant, William McClintic, appealed.R. Ambler, for appellant.

A. J. Baker, Atty. Gen., for the State.

SEEVERS, J.

1. The prosecuting witness testified that she was an unmarried woman, and that the defendant promised to marry her, and thereby accomplished her seduction; that the seduction took place on the twenty-seventh day of January, 1884, and as to this time she was quite positive. She also testified that defendant had visited and sought her company frequently, during a period of two years or more, at her father's house, and at her brother's and brother-in-law's; that on such occasions she and defendant were alone the greater part of the night. The evidence of the prosecuting witness was corroborated, to some extent, by her mother, father, brother, and brother-in-law, as to the visits, and as to the defendant being in her company as above stated. The seduction was accomplished at her brother's house, as the prosecuting witness testified, and that it was on Saturday night; and her brother testified that she met the defendant at his house Saturday, in the evening. W. R. Mason testified that he, in a conversation with the defendant in which he said he was going away, “asked him why he was going so sudden, and he said, ‘Nothing in particular.’ I said, ‘You might as well come out with it; I have heard what is going through the neighborhood.’ I asked him, then, ‘Do you deny fixing the girl up the way the report was?’ He said he did not deny it. I said, ‘Why don't you go and marry her?’ He said he never intended to. I said, ‘Why didn't you let her alone, then?’ He said, ‘The old man would not let me come to the house now.’ He says, ‘I have got her fixed; he can take her, and go to hell with her.’ ”

It is contended by counsel for the defendant that there is no evidence which sufficiently corroborates the prosecutrix, and which tends to connect the defendant with the offense; but we think the evidence is clearly sufficient in this respect. The jury were fully warranted in finding what the defendant said to Mason had reference to the prosecuting witness, and that he had sexual intercourse with her. It is true, there is no corroborating evidence that he used any seductive arts, or that the seduction was accomplished under a promise of marriage. Such evidence cannot usually be obtained. Evidence of the use of seductive arts, other than that of the prosecutrix, cannot usually be obtained more easily and readily than the fact of sexual intercourse; and this is true in most cases as to a promise of marriage. For a time, at least, if the promise precedes the seduction, it is usually known to the parties only. The fact that the parties kept company together, and acted as lovers usually do, and other circumstances, are regarded as sufficient as corroborating evidence tending to connect the defendant with the offense. State v. Wells, 48 Iowa, 671.

It is also said that the prosecutrix is not corroborated as to the time when she states the seduction took place. But the exact time is never material, although the prosecutrix may be quite positive in this respect; she is not infallible, and may be mistaken, and it is not material that the seduction occurred on the particular day named by the prosecutrix. It is therefore not essential that she should be corroborated as to the exact day. In this connection, we deem it proper to say of the instructions of the court, that if the seduction was accomplished about or near the time named in the indictment, and fixed by the prosecutrix in her evidence, it was sufficient and correct. State v. Bell, 49 Iowa, 490.

2. Evidence was introduced by the defendant tending to show that he was not at the place where it is claimed the seduction took place on the night of the twenty-seventh of January, 1884. The state, in rebuttal, introduced Mary Kurtz and asked her whether or not the prosecutrix was at her house the latter part of January, 1884. To this question the defendant objected, as “incompetent, immaterial, and not in rebuttal.” The objection was overruled, and the witness answered: “Yes, she was.” The witness was then asked: “State whether or not the defendant was at your house, if you saw him, and talked with him, and if he visited with her at that time.” A similar objection to this question was overruled, and the witness answered: “He did.” It is urged that the name of this witness was not indorsed on the back of the indictment, and therefore her evidence is not admissible; but this point is not well taken, if the evidence can properly be regarded as rebutting. It is also objected that it should have been introduced in chief; but the fact that evidence was admissible in chief does not establish it was not admissible in rebuttal. The defendant undertook to establish an alibi. This is a defense, and as to it the burden was on him. The state could not anticipate such a defense, but it had the right to introduce evidence in rebuttal which tended to contradict the evidence which tended to establish an alibi. Therefore the court did not err in admitting the evidence.

3. The charge to the jury contains 26 paragraphs or propositions of law, and we regard them generally as favorable to the defendant, and the...