State v. Nugent

• Decision Date: 09 May 1907
• Citation: 111 N.W. 927,134 Iowa 237
• Parties: STATE v. NUGENT.
• Court: Iowa Supreme Court

134 Iowa 237

111 N.W. 927

STATE

v.NUGENT.

Supreme Court of Iowa.

May 9, 1907.

Appeal from District Court, Greene County; Z. A. Church, Judge.

The defendant was convicted of the crime of seduction, and he appeals. The opinion states the case. Reversed.C. E. Reynolds, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

BISHOP, J.

1. The indictment against the defendant was returned at the March, 1904, term of court, and the defendant appeared at that term in person and by attorney and pleaded not guilty. It seems that preceding this the prosecuting witness, Nellie Breiner, had commenced a civil action against defendant to recover damages growing out of her alleged seduction, and at the August, 1904, term of court, a stipulation was made of record to the effect that proceedings under the indictment should be continued until said civil action had been tried. Accordingly continuances were had at the October, 1904, and January, 1905, terms, respectively. At the March, 1905, term, the state moved for a continuance on the ground of the ill health of the prosecuting witness, and this was resisted by the defendant, for the reasons that the showing was not timely, and was insufficient as to the fact of ill health, and furnished no reasonable assurance that the witness could be produced at the next term of court. The motion was sustained, and we think properly so. Without setting it out in detail, it is sufficient to say that in its facts the showing was sufficient; moreover, as shown by the record, the civil case referred to was on trial at the time the ruling was made. Thereafter, and at the same term of court, the defendant appeared and demanded trial during the term. This being refused, and relying upon Code, § 5536, he moved to dismiss, on the ground that four terms of court at which he might have been tried had passed since his indictment and plea. The motion was overruled, and, in view of the situation as we have outlined it above, it is manifest that the ruling was correct.

2. During the cross–examination of the prosecutrix, the fact was brought out that prior to the indictment she had commenced, and there was still pending, her civil action against defendant to recover damages on account of her seduction by him. The witness also admitted having had a conversation with defendant's attorney, in the presence of defendant and his sister, and occurring after the civil suit had been commenced, but before the indictment; and following this admission, she was asked by defendant's attorney if she had not on the occasion of that conversation stated that her seduction took place on March 30, 1903. To such question, the witness answered: “I did tell you of that act. You asked a number of questions,” etc. On redirect examination, the county attorney was permitted over objections to show by the witness that on the occasion of the conversation referred to in cross–examination, an attempt was made by the attorney, aided by defendant's sister, to induce the witness to accept of a sum of money, which was produced at the time and offered to her, and dismiss her civil suit. Now, the cross–examination––and we have set out above all that has bearing––did not warrant the admission of the matter thus brought out on redirect. Under the circumstances of the case, such matter was not competent or material to any purpose involved in the issue. An offer of compromise of the civil suit made by the attorney, in the presence of defendant and presumably by his authority, was not in law or in fact tantamount to a confession of guilt. Defendant had the right to effect a settlement if he could, and whether this was on motive to redress a wrong done by him or simply to buy his peace was wholly immaterial. This is but elementary doctrine. Possibly the court took the view that as defendant had called out part of the conversation in question the state was entitled to all thereof. And in the books there is to be found expression of such a rule. But no warrant is to be found for extending such rule to cover a subject–matter, in itself incompetent, which, although touched upon duringthe course of the conversation, was not broached in the examination of the witness by the opposite party. 3 Ency. of Evidence, 835. That the error thus pointed out was in all likelihood followed by prejudice, we are bound to presume. There is nothing in the record upon which to predicate a contrary conclusion. The jury was given no instruction on the subject, and as the fact of intercourse was the subject of a direct issue in the evidence, it may very well be that in their deliberations the offer of settlement...