State v. Miller

• Decision Date: 24 October 1884
• Parties: THE STATE v. MILLER
• Court: Iowa Supreme Court

21 N.W. 181

65 Iowa 60

THE STATE v. MILLER

Supreme Court of Iowa, Dubuque

October 24, 1884

Appeal from Marshall District Court.

THE defendant was convicted in the court below of the crime of incest, alleged to have been committed by having carnal knowledge of his daughter, Lorada Miller. Defendant appeals.

AFFIRMED.

John H Bradley, for appellant.

Smith McPherson, Attorney-general, for The State.

OPINION

ROTHROCK, CH. J.

I. At the January term, 1884, the defendant was put upon trial on the indictment, and the jury failed to return a verdict because they were unable to agree. After the jury were discharged, the district attorney filed a motion for a continuance of the cause until the next term, based upon the absence of two witnesses. One of these witnesses was present and testified upon the first trial, and the other was a non-resident, and absent from the state. The non-resident witness was one Davis, and it appears from the affidavit that the defendant had made the claim that Davis had sexual intercourse with defendant's daughter, and that he was the father of her illegitimate child. The affidavit of the district attorney was to the effect that Davis would testify that he never at any time had such sexual intercourse with the prosecutrix. The defendant resisted the motion for a continuance, upon the grounds that the witness who had been in attendance at the first trial should not have been permitted to absent himself until the case was finally disposed of, and that his testimony did not tend to corroborate the testimony of the prosecutrix. As to Davis, the objection was that there was no reasonable expectation that his attendance could be secured at the next term, and that his evidence would not be corroborative, and would be immaterial and incompetent. The motion for a continuance was sustained, to which ruling the defendant excepted. Thereupon, the defendant appeared in open court, and waived the right to confront said witnesses, and admitted that they would testify as stated, and consented that the testimony might be read upon the trial, upon which waiver the motion for continuance was overruled.

It is claimed that the agreement to go to trial and waive the presence of the witnesses was not a waiver of the ruling on the motion for a continuance. Without determining the question as to what was waived by the agreement, we think the showing made for a continuance was sufficient. There was no lack of diligence on the part of the district attorney. The case was one which would quite naturally excite the public mind, and in view of the difficulty of securing a jury to try a case of this character the second time at the same term, we would be slow to disturb an order of continuance upon the ground that the district attorney had permitted the witnesses for the state to absent themselves at the close of the introduction of the evidence upon the first trial. It is claimed that the testimony of Davis would have been immaterial. We think otherwise. It was not necessary that it should be in direct corroboration of the testimony of the prosecutrix as to the body of the crime. The record shows that it was most material in contradiction of the theory of the defense that Davis was the author of the misfortune of the prosecutrix.

II. The sufficiency of the evidence to warrant the verdict is the material question in the case. The evidence shows that the daughter of the defendant was delivered of a child when she was between fifteen and sixteen years of age. The defendant's wife died some years before that, and the defendant and his four children composed the family at the time it is charged the crime was committed. The prosecutrix was the oldest child. She testified, upon the trial, that her father commenced to have sexual intercourse with her when she was about eleven years old, which was continued up to the time she became pregnant, which was in December, 1882; that after she became pregnant he procured medicine for her to produce an abortion; that he told her to say that one Davis was the father of the child. If the testimony of the prosecutrix was, in law, sufficient to sustain a conviction we would not be warranted in reversing the judgment for want of sufficient evidence. It is true that it appears from her evidence that, upon the first trial, she testified that on every occasion of sexual intercourse the act was accomplished by force, and on the last trial she testified that no force was used excepting during the first years of their illicit intercourse. And she admits that she claimed at one time that Davis was the father of the child. It is strenuously urged in argument that the contradictions render the witness unworthy of belief. That was a question for the jury, and it is not for this court to sit in judgment upon it, in view of the statement which she makes that her father induced her to claim Davis as the father of the child, and in view of the explanation she makes as to her former testimony as to the force used. It is claimed, however, that, conceding that the jury were warranted in giving credence to the testimony of the prosecutrix, there is no other evidence tending to connect the defendant with the commission of the offense sufficient to constitute the corroboration required by statute. We suppose it is a question for the court to determine whether there is any corroborating evidence in cases of this character. But it is for the jury to weigh and determine the effect of such evidence, and its sufficiency, and each case must be determined upon its own facts, because, in the nature of things, the corroboration cannot be the same in any two cases. Many cases of this kind have been determined...