State v. Mecum

• Decision Date: 04 October 1895
• Citation: 64 N.W. 286,95 Iowa 433
• Parties: STATE v. MECUM.
• Court: Iowa Supreme Court

95 Iowa 433

64 N.W. 286

STATE

v.MECUM.

Supreme Court of Iowa.

Oct. 4, 1895.

Appeal from district court, Greene county; G. W. Paine, Judge.

The defendant was indicted, tried, and convicted of the crime of having in the nighttime, unlawfully, burglariously, and feloniously entered the dwelling house of one Henry Drake, with intent to commit a public offense, to wit, the crime of adultery. Judgment of imprisonment in the penitentiary was entered against the defendant, from which he appeals.Russell & Toliver and Church & Lovejoy, for appellant.

Milton Remley, Atty. Gen., and Jesse Miller, for the State.

GIVEN, C. J.

1. The evidence shows without conflict that on the night of June 28, 1893, the defendant (then a married man) entered the dwelling house of one Henry Drake, without the consent of said Drake, through a window into a bedroom on the lower floor of said dwelling house; that said bedroom was then occupied by one Jennie Bott, a married woman, who was living apart from her husband, and that between 10 and 11 o'clock that night the defendant and said Jennie Bott were found in said room, undressed and in bed together, and the defendant's shoes were found near a fence 75 to 100 feet from the house. Defendant introduced evidence of himself and Jennie Bott tending to show that the husband of Mrs. Bott was angry at her, and had threatened her with personal violence; that on said night the defendant, knowing that fact, and having seen Mr. Bott going in the direction of Mr. Drake's residence, went to the window to warn Mrs. Bott of the fact and to keep away from the window; that the window was open when he came; that he warned Mrs. Bott, and told her to keep back from the window; that she invited him to come in, but he declined until there was a stir among some horses in a pasture near by, which they supposed was caused by the approach of Mr. Bott, whereupon she again invited him to come in, and he went in at the open window. Defendant states that when he went to the house he had no intention of going in, and gives as a reason why he left his shoes by the fence, 75 or 100 feet from the house, that “they were new and squeaked,” and “I didn't want to be heard.”

2. Appellant complains of certain rulings in taking the testimony. Henry Drake, in testifying to a conversation had with the defendant the next morning after the occurrence, states that the defendant said, “When I went home this morning, I told my wife about this, and she said, ‘It was nothing more than I expected.’ ” Appellant contends that the statement of his wife was inadmissible. The evidence was not of her statement, but the statement of the appellant, and as a part of a conversation. If what he said his wife stated was inadmissible, no prejudice could result from failing to rule it out. On cross–examination, Mrs. Bott was asked if she and her husband had trouble over the defendant, whether she knew that there had been a great deal of talk about the conduct of herself and defendant, and whether defendant had called on her frequently since the 28th of June. To each of these questions the defendant's objection, as not proper cross–examination, immaterial, and incompetent, was overruled. These inquiries were all proper and material to show the relations and feelings that existed between the defendant and Jennie Bott and her husband. The answers have a direct bearing upon the question of the intention of the defendant. The subsequent relations between defendant and Mrs. Bott were competent, as tending to show the intention with which they acted on June 28th. There was no error in these rulings of the court.

3. Appellant complains of certain paragraphs of the court's charge, and first of that numbered fifteen, which is as follows: “If you find from the evidence, and beyond reasonable doubt, that the defendant went to the dwelling house of Henry Drake secretly and in the nighttime, and there secretly entered the dwelling house, and was shortly thereafter found undressed and in bed with Mrs. Bott, who was then also undressed, then a strong presumption would arise that he did so enter for the purpose of committing adultery; and such presumption would continue until rebutted by the evidence, and, if not so rebutted, would justify you in finding such intent to have existed at the time of the entry. ‘Nighttime’ means the time between darkness after sundown and dawn of daylight in the morning.” The contention is that the court presumes the...