State v. McGinn

• Decision Date: 12 December 1899
• Citation: 80 N.W. 1068,109 Iowa 641
• Parties: STATE v. MCGINN.
• Court: Iowa Supreme Court

109 Iowa 641

80 N.W. 1068

STATE

v.MCGINN.

Supreme Court of Iowa.

Dec. 12, 1899.

Appeal from district court, Monroe county; F. W. Eichelberger, Judge.

Indictment for seduction. Trial to jury. Verdict and judgment of guilty. Defendant appeals. Reversed.N. E. Kendall, for appellant.

Milton Remley, Atty. Gen., and C. A. Van Vleck, Asst. Atty. Gen., for the State.

WATERMAN, J.

Defendant, on the day set for the trial, made application for a continuance over the term, on the ground that a material witness subpœnaed by him had refused to respond. We may concede the diligence of defendant in attempting to secure the presence of this witness, and also the materiality of the evidence sought to be obtained, but we do not think it is made to appear that the witness' presence could be secured by ordinary methods at the ensuing term. He had disobeyed a subpœna once, and there was no reason to think that he would come at any time without compulsion. Defendant should have applied for an attachment. Had he done so, the court would have doubtless granted it, and given him an opportunity to procure the witness' presence by force. If not, he would have had just ground of complaint. There was no error in overruling the motion as made.

2. One Hoagland, a witness for the state, testified to seeing in the room of prosecutrix a letter to her which purported to be signed by defendant. He was allowed to state the contents, which were of a material nature. This evidence was erroneously received. While a sufficient foundation had been laid for the receipt of secondary evidence, yet there was no showing that the letter was written by defendant, other than that his name was subscribed to it. No attempt was made to otherwise identify it as his. See Greenl. Ev. § 557.

3. The seventh paragraph of the court's charge is not accurately worded. It is open to the objection that it authorizes the jury to find the corroborative facts necessary to make out this offense in the testimony of the prosecutrix, to some extent, and characterizes the fact of her giving birth to an illegitimate child as a corroborative circumstance. In both of these respects the instruction is objectionable. The corroboration must be by evidence other than that of prosecutrix. State v. Kingsley, 39 Iowa, 439;State v. Lenihan, 88 Iowa, 670, 56 N. W. 292. While the fact of the birth of an illegitimate child was admissible to show that some man had illicit intercourse with prosecutrix, it did not tend...