State v. Mentzer

• Decision Date: 17 June 1941
• Docket Number: 45567.
• Citation: 298 N.W. 893,230 Iowa 804
• Parties: STATE v. MENTZER.
• Court: Iowa Supreme Court

298 N.W. 893

230 Iowa 804

STATE v. MENTZER.

No. 45567.

Supreme Court of Iowa.

June 17, 1941

Appeal from District Court, Harrison County; Whitney Gillilland Judge.

Defendant appeals from his conviction of the crime of incest committed upon his daughter.

Affirmed.

Russell S. McKay, of Logan, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Carl V. Burbridge and Edwin Getscher, both of Logan, for appellee.

GARFIELD, Justice.

Appellant was indicted for the crime of incest, tried before a jury and convicted. The testimony for the state was to the effect that during the summer months of 1938 and 1939, defendant frequently had intercourse with his daughter in the family home.

The prosecuting witness testified: " He (appellant) always told me not to tell about these acts, and he would say that if I opened my mouth to tell anyone, I would never open it again. I never consented to intercourse any time; I tried to get away from him at various times, but could not do so because he was stronger than I. When I would try to duck he would slap me." Appellant was a witness in his own behalf but made no denial of any of the state's testimony. He testified merely that he had suffered from arthritis during all of the period in question. He had previously been convicted of a felony.

Appellant's contention upon this appeal is that the jury might have found that the prosecutrix consented to the acts complained of and therefore was an accomplice; that if she was an accomplice, her testimony must be corroborated; that the trial court erred in refusing a requested instruction on this matter of corroboration. Appellant's claim that the daughter was an accomplice has little in the record to support it. However, we will assume, without deciding, that the jury could have found the daughter was an accomplice to the crime by voluntarily consenting thereto.

Incest is not one of the crimes mentioned in section 13900, Code 1939, requiring corroboration of the testimony of the injured female in cases of rape, seduction and certain other offenses. However, the following section (13901) requiring corroboration of the testimony of an accomplice upon the trial of any offense is as follows:

" Corroboration of accomplice. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."

By reason of this statute, the testimony of the prosecutrix must be corroborated if she consented to the illicit relations with appellant. If, however, she was the victim of force or undue influence and did not willingly join in the incestuous acts, her testimony alone may be sufficient to sustain a conviction. State v. Terry, 199 Iowa 1221, 1224, 203 N.W. 232; State v. Candler, 204 Iowa 1355, 1360, 217 N.W. 233; State v. Kouhns, 103 Iowa 720, 73 N.W 353. The trial court clearly and accurately instructed the jury on these matters. He quoted section 13901; defined an accomplice as an associate in crime, one who cooperates, aids or assists in committing it; stated that if the daughter consented to intercourse then she would be an accomplice; that if she did not act voluntarily or if the offense was committed by force or undue influence exerted...