State v. More

• Citation: 115 Iowa 178,88 N.W. 322
• Parties: STATE v. MORE.
• Decision Date: 20 December 1901
• Court: United States State Supreme Court of Iowa

115 Iowa 178

88 N.W. 322

STATE

v.MORE.

Supreme Court of Iowa.

Dec. 20, 1901.

Appeal from district court, Taylor county; H. M. Towner, Judge.

The defendant appeals from a judgment convicting him of adultery. Affirmed.McCoun & Jennings, for appellant.

Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

LADD, J.

The court, over defendant's objections, admitted evidence of his undue familiarity with Edith Schrader, and of facts from which sexual intercourse with her might be inferred, occurring subsequent to the act of adultery for which the state elected to prosecute. And some of the acts appear to have been accomplished in the neighboring state of Nebraska. In State v. Smith, 108 Iowa, 440, 79 N. W. 115, it was pointed out that in neither State v. Donovan, 61 Iowa, 278, 16 N. W. 130, nor State v. Oden, 100 Iowa, 22, 69 N. W. 270, did the court pass on the admissibility of such evidence. In each the rule excluding it is conceded, rather than determined, and the introduction of evidence of this character, which we think entirely proper, declared to have been without prejudice. Doubtless in some of the earlier cases in this country evidence was restricted as contended it should be by appellant, but the later text-books and decisions recognize the ordinary course of human conduct as a proper element for consideration in such investigations. The disposition of the accused persons toward each other at the time alleged must necessarily have an important bearing on the deductions to be drawn from the incriminating circumstances proven, and this is ordinarily of gradual development, and not likely to suddenly disappear. As said in Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110: “The evidence by which the act of adultery is proved is seldom direct. The natural secrecy of the act makes it ordinarily impossible to prove it except by circumstantial evidence. The circumstances must be such, indeed, as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt. But, when adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, with comparatively slight circumstances showing guilt, would be sufficient to justify the inference that criminal intercourse has actually taken place. The intent and disposition of the parties toward each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true that the fact to be proved is the existence of a criminal disposition at the time of the act charged, but the indications by which it is proved may extend, and ordinarily do extend, over a period of time both anterior and subsequent to it. The rules which govern human conduct, and which are known to common observation and experience, are to be applied in these cases, as in all other investigations of fact. An adulterous disposition existing in two persons toward each other is commonly of gradual development. It must have some duration, and does not suddenly subside. When once shown to exist, a strong inference arises that it has had and will have continuance, the duration and extent of which may be usually measured by the power which it exercises over the conduct of the parties. It is the character of permanency which justifies the inference of its existence at any particular point of time from facts illustrating the preceding or subsequent relations of the parties.” It was also held in State v. Bridgman, 49 Vt. 209, 24 Am. Rep. 124, that evidence of other acts of improper familiarity and adultery between the parties to the alleged offense, continuing from before until after the offense charged, and after indictment found, is admissible, although it proves other and distinct offenses, to show the true relation of the parties to each other, and also to show that the restraints and safeguards of common deportment and conventionality, and of the natural modesty that is presumed to exist, have been broken through and displaced by the adulterous disposition and the habits of adulterous intercourse. The court, in Crane v. People, 168 Ill. 399, 48 N. E. 56, declared that: “Whatever may have been said to the contrary in certain cases, it must now be regarded as settled law that in such cases prior acts of improper familiarity or of adultery between the parties, whether they occurred in the same jurisdiction or not, and even subsequent acts which tend to show continued illicit relations between them, may be proved in explanation of or as characterizing the acts and conduct of the parties complained of, as constituting the particular offense charged.” In State v. Witham, 72 Me. 531, the court observed that: “Latterly, courts and text writers are rapidly falling in with the view that...