State v. Seely

• Decision Date: 12 December 1894
• Parties: STATE v. SEELY.
• Court: Iowa Supreme Court

92 Iowa 488

61 N.W. 184

STATE

v.SEELY.

Supreme Court of Iowa.

Dec. 12, 1894.

Appeal from district court, Guthrie county; J. H. Henderson, Judge.

The defendant was convicted of the crime of seduction, and adjudged to be imprisoned in the penitentiary at Ft. Madison, at hard labor, for the term of 13 months. From that judgment he appeals. Affirmed.Sever & Neal, for appellant.

John Y. Stone, Atty. Gen., Chas. L. Powell, Co. Atty., and E. W. Weeks, for the State.

ROBINSON, J.

1. The appellant states, without any discussion of the evidence, that it fails to show that any crime was committed, and that it appears that the submission of the prosecutrix to him was voluntary,--without artifice or promise on his part. It is sufficient to say, in response to this claim, that the evidence shows, almost without contradiction, that the crime was committed as charged in the indictment. The prosecutrix was a woman of previously chaste character, and submitted to sexual intercourse with the defendant by reason of his promise of marriage. The jury could not have done otherwise than find him guilty.

2. A new trial is sought on the further ground that an attorney for the state was guilty of misconduct during his argument to the jury, in referring to the failure of the defendant to testify in his own behalf. Section 3636 of the Code, as amended by section 1 of chapter 168 of the Acts of the 17th General Assembly, contains the following: “Defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state; and should a defendant not elect to become a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state during the trial refer to the fact that the defendant did not testify in his own behalf; and should he do so, such attorney or attorneys shall be guilty of a misdemeanor, and defendant shall for that cause alone be entitled to a new trial.” The defendant in this case did not testify as a witness. It appears that, during a part of the opening argument to the jury made by an attorney for the state, the judge was absent from the court room, and the words in question were spoken during that time. What they were is a matter of dispute. The defendant claims that they were as follows: “Defendant or his counsel have not denied sexual intercourse of the defendant with this girl, and promise of marriage. I defy counsel to point out...