State v. McClure

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPRESTON, J.
Citation140 N.W. 203,159 Iowa 351
PartiesTHE STATE OF IOWA, Appellee, v. CHARLEY MCCLURE, Appellant
Decision Date12 March 1913

140 N.W. 203

159 Iowa 351



Supreme Court of Iowa, Des Moines

March 12, 1913

Appeal from Davis District Court.--HON. C. W. VERMILLION, Judge.

DEFENDANT was convicted of the crime of seduction, and appeals.


Payne & Goodson, for appellant.

Geo. Cosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for the State.

OPINION [140 N.W. 204]

[159 Iowa 353] PRESTON, J.

Numerous matters are urged and relied upon for a reversal. Those most strongly argued are in reference to the alleged misconduct of the county attorney and the sufficiency of the evidence, particularly as to whether the jury were justified in finding prosecutrix to have been of chaste character at the time of the alleged seduction. It is said the court erred in permitting the prosecutor on cross-examination of defendant's witnesses to put improper question's and to make insinuating remarks reflecting on witnesses and defendant, and that the prosecutor made improper [159 Iowa 354] statements to the jury in argument, especially in quoting from an opinion of this court. The matters above complained of appear in the record.

I. Other matters are set out in affidavits attached to the motion for new trial as to what is alleged to have been said and done. As to these matters, counter affidavits were filed by the state. The court made no finding of facts in regard to these things, and they cannot be considered without such a finding. Where there is a conflict in the affidavits, the trial court is in a much better situation to determine the facts than this court can be. Rayburn v. Railway, 74 Iowa 637; Knaebel v. Wilson, 92 Iowa 536, 61 N.W. 178; State v. Helm, 97 Iowa 378, 66 N.W. 751.

It must be conceded that some of the questions put by the prosecutor were improper, but objections were promptly sustained by the court. The prosecutor was not alone in thus offending. Questions were asked by defendant's counsel, not so much perhaps by way of insinuation, as in an endeavor to get before the jury and in the record evidence which was clearly incompetent. This was done on the theory probably that, if an acquittal could be secured, such errors would not be available to the state on motion for a new trial. We would not encourage such practices by either side, nor would we relax the rule that the defendant in a criminal case is entitled to a fair trial. The state is also entitled to a fair trial. The rules of practice and evidence are the same for both, in theory at least, and ought to be so in practice. In case of doubt the defendant should be given the benefit of the doubt, but this may be and often is carried too far as we and all courts and lawyers know. [140 N.W. 205] Trial courts generally allow greater latitude to the defense. Attorneys for the defense go outside the record in argument, and do other things they would not think of doing in a civil case where a new trial might be granted. Then, if the prosecutor meets them in the same way and tries to prevent the defense running away with the case, he is accused of being [159 Iowa 355] unfair. It would be the better practice, and it would be right, for both sides to try each case fairly and on the merits. In this case, as in others where the attorneys for the defense are able and the prosecution is vigorous, some things are said and done which should have been dispensed with. Persistently asking improper questions and injecting improper statements into the record may be reversible error, but asking improper questions and making improper remarks are not necessarily prejudicial. The trial court is in a position to see and hear what is being done and said, the disposition and temperament of the attorneys; their manner, and that of the witnesses being examined; the demeanor of attorneys towards each other; their tone of voice, and like matters. The examination of witnesses and conduct of the trial is largely a matter for the trial court to determine, as is the question whether either party has been prejudiced by the conduct of the other, and its action will not be interfered with on appeal, unless the discretion lodged in it has been abused. State v. Johns, 152 Iowa 383, 132 N.W. 832; State v. Norman, 135 Iowa 483, 113 N.W. 340.

The same rule applies where the trial court has overruled a motion for new trial on the ground of alleged misconduct in argument. One of the statements of the prosecutor of which complaint is made was in answer to argument of counsel for defendant. In referring to the testimony of defendant's witnesses, who had testified to their having had sexual intercourse with prosecutrix, the prosecutor said: "I tell you what the Supreme Court of Iowa thinks about such a fellow. The Supreme Court says that, so long as juries are made up of men possessing normal, moral, and intellectual qualities, they will rarely let the presumption of virtue in women be overcome by the testimony of any number of witnesses whose story, whether true or false, is a confession of their own infamy. (Defendant objects to that as being prejudicial and incompetent. Court: Yes, I think that is improper and the jury will not regard it. The ruling of the court is excepted to.) I speak to you now as normal men, morally and intellectually, [159 Iowa 356] and it is for you to say whether the stories of such men, whether true or false, shall be weighed by you as sufficient to overcome the presumption of innocence in woman."

We do not approve of the prosecutor's quoting to the jury from the opinion of this court, which is found in State v. Drake, 128 Iowa 539, 105 N.W. 54. The trial court was right in sustaining the objection and directing the jury to disregard it. The statement of this court in that regard did not announce any rule of law.

It is presumed the jury obeyed the direction of the court to disregard the statement of the county attorney. It is claimed by counsel for the appellant that juries give weight to an intimation from the court, but this court did not make the remark quoted to the jury. Furthermore, it is doubtful whether a jury could be found who would not feel the same way about it without being told.

The statement of the prosecutor after the court had sustained the objection to the quotation was not in itself improper, and it is not made so by the fact that the county attorney addressed the jurors as normal men, morally and intellectually. He simply left it to the jury to say what weight should be given to the evidence of such witnesses. From matters appearing in the record and arguments in this court, we assume that the prosecutrix was not spared by counsel for defendant in their arguments to the jury. The trial judge heard all the arguments, and all that was said and done at the trial. He seems to have been fair and entirely impartial. In overruling the motion for new trial, it was his judgment that no prejudice had resulted. We would not be justified in reversing on these grounds.

II. It is next urged by appellant that the verdict is not sustained by the evidence. The defendant admitted having had intercourse with the prosecutrix, but denied the use of any seductive arts. The defense was based largely on the claim that prosecutrix was unchaste at the time of the alleged seduction. The claim here is, as we understand it, that the evidence which [159 Iowa 357] he produced was such that we should say that the element of chaste character was not sufficiently sustained. This was for the jury. There was evidence which, if true, would tend to show unchastity. Witnesses testified to having had sexual intercourse with her before the alleged seduction, but the weight of this evidence was for the jury. Such witnesses were some of them more or less impeached by evidence of their own contradictory statements. There was evidence as to prosecutrix and her sister going swimming with the defendant and a boy about sixteen years of age, also evidence as to vulgar language on her part, and other matters. These matters were all denied by her, and her character in this respect was sustained by her neighbors and associates. The prosecutrix was about sixteen or seventeen years old at the time of the alleged seduction. She fixed May 18, 1908, as the date when the alleged seduction occurred, and the first act of intercourse, and testified that such relations continued. A child was born March 10, 1909. She testified to promises made by defendant [140 N.W. 206] at the time, and which she says she relied on, and there was evidence of courtship and evidence of admissions made by defendant. Defendant admits that the first intercourse in 1908 occurred about the middle of May, and that such relations continued for a month or two. He denies the use of any seductive arts. While defendant was in Marshall county his brother...

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