State v. Swafford

• Decision Date: 20 May 1896
• Citation: 67 N.W. 284,98 Iowa 362
• Parties: STATE OF IOWA v. CHARLES B. SWAFFORD, Appellant
• Court: Iowa Supreme Court

67 N.W. 284

98 Iowa 362

STATE OF IOWA v. CHARLES B. SWAFFORD, Appellant

Supreme Court of Iowa, Des Moines

May 20, 1896

Appeal from Johnson District Court. -- HON. M. J. WADE, Judge.

DEFENDANT was indicted, tried and convicted of the crime of perjury and judgment of imprisonment in the penitentiary for two years entered against him, from which he appeals.

Reversed.

Bailey & Murphy and George A. Ewing for appellant.

Milton Remley, attorney general, George W. Ball, county attorney and Joe. A. Edwards for the state.

OPINION

GIVEN, J.

I.

On the twenty-first day of March, 1894, Maud M. Bane filed her petition in the district court of Johnson county against T E. Murphy, stating as her cause of action as follows: "That heretofore, to-wit, on and before the first day of September, 1893, she was an unmarried woman, of previously chaste character, a resident of Penn township, in Johnson county, Iowa and of the age of majority; that on or about said first day of September, 1893, the defendant, for the purpose of injuring and destroying plaintiff's good name, happiness, and future comfort, did seduce and debauch the plaintiff, and did then and there cause her to be pregnant with child, all to the plaintiff's damage in the sum of $ 10,000." She asked judgment for that amount. The defendant Murphy answered denying generally; and thereafter, on the fourth day of June, 1894, the deposition of this defendant was taken in said action before O. A. Byington, a notary public, duly authorized to take the same. The charge is that defendant, Swafford, in giving his testimony before said notary, "willfully, corruptly, knowingly, falsely, and feloniously swore that he, the said Charles B. Swafford, had sexual intercourse with the said Maud M. Bane twice on the night of July 4, 1893, at her home."

II. To constitute perjury, said testimony of the defendant must have been to a material matter in the proceeding in which it was taken. Code, section 3936. Appellant contends that, under the issues joined in that case, said testimony was not to any material matter therein; that the presumption of law establishes prima facie the chaste character of the plaintiff in a seduction case, and therefore the averment of chastity in said petition was not essential to the cause of action, and need not have been alleged, and was not required to be proven, and therefore the general denial joined no issue thereon. It is further argued that the character of the plaintiff in that case for chastity could only become material under a plea of a want of chastity in mitigation of damages, and as no such plea was made in that case, said testimony was immaterial. That the allegation that the defendant in that action caused the plaintiff to be pregnant with child was not essential to recovery, but might be shown in aggravation of damages by the plaintiff, and that the defendant might show in mitigation that the pregnancy was caused by another. These propositions may all be conceded; yet it remains clear, we think, that said testimony was to a material matter in that case. Concede that, upon an allegation of seduction alone, and a general denial, this testimony would have been immaterial under the presumption of chastity; yet we have the allegation of pregnancy, caused by the defendant in that action, in aggravation of damages, and his denial thereof. Upon this issue the paternity of the child was material. The child was born April 4, 1894; and on June 4, 1894, this defendant testified that he had sexual intercourse with that plaintiff on the night of July 4, 1893, just nine months prior to the birth of the child. Surely, his testimony was material upon the issue as to the amount of damages, if not as to the chastity of that plaintiff. Whether such evidence would be material, under an averment of seduction alone, and a general denial, we do not determine, as we regard it as material on the issue as to damages.

III. On this trial Maud M. Bane testified that the defendant never had sexual intercourse with her at any time or place. Thereafter the defendant testified in his own behalf, and, on his examination in chief, said: "I had sexual intercourse with Maud Bane that night [July 4, 1893] twice, in the house, on the sofa." Upon further examination he stated that he saw Miss Bane on the first and also on the second Sunday after said fourth of July. He was then asked: "Did you, or not, have intercourse with Miss Bane on that occasion?" To this the state objected as immaterial, irrelevant, and incompetent, which objection was sustained, and of this appellant complains. His contention is that if he could show that he had sexual intercourse with her on or about the fourth day of July, 1893, he was not guilty of perjury in testifying as he did in said deposition. Appellant quotes from Whart. Cr. Law, section 1276, as follows; "If a witness be asked whether goods were paid for on a particular day, and he answers in the affirmative, if the goods were really paid for, though not on that particular day, it would not be perjury, unless the day be material." Plath v. Braunsdorff, 40 Wis. 107, is also cited, wherein the particular day on which a certain act was done was held not to be material.

The charge is, that the defendant testified falsely, that he had sexual intercourse with Maud M. Bane twice, on the night of July 4, 1893, and it is alleged, that he did not have sexual intercourse with her on said night, "nor at any other time, twice, nor once, nor at all." Whether, as a matter of pleading, that part of the negative averment that he did not have sexual intercourse with her at any other time, might be treated as surplusage, we need not determine. It is evident from the record, that the contention is, whether the defendant was guilty of perjury in swearing that he had intercourse with Maud M. Bane on the night of July 4, 1893. This, as we have said, was a material issue in the seduction case, and is an important issue in this. She testifies positively, that he did not have sexual intercourse with her on the night of July 4, 1893, and he again testifies as positively that he did. There is no pretense that, in testifying on either occasion, the defendant was mistaken as to the day. The charge, the plea, and the proofs, all relate to July 4, 1893; hence the day is material, and what is said as to other times, is immaterial. Maud M. Bane testified in chief, on behalf of the state, that she saw the defendant on the fourth day of July, 1893, at her home, and that he did not have sexual intercourse with her on that day or night, nor at any other time. This was all the evidence offered by the state as to the time the defendant and Maud M. Bane were together on that day or night. Her further testimony in chief was solely as to the interview in Mr. Remley's office on the seventh day of August, 1894. On her cross-examination she testified as follows: "I was with Mr. Swafford on the night of July 4, 1893. In the daytime I was with him at the iron bridge, and returned home in the evening. We took our supper at home. After supper we want down to Linder's platform. I think we stayed there until about half past nine o'clock, and then Mr. Swafford and I returned home. There was nobody present at that time but Mr. Swafford and myself. I don't know how long Mr. Swafford stayed. I don't think he was there over an hour." The further cross-examination on this subject was as follows: "Q. And during that hour you and Mr. Swafford were there together alone? A. Not alone; no, sir. Q. Who else was there? (Same objection). Court: It may be answered, but the gentlemen understand my rule. Anything collateral to the main question inquired into that the cross-examination upon it is conclusive, that you can't call out a matter for the purpose of contradiction. A. Our folks came home about 15 or twenty minutes after we did; they were at Linder's. I think we left the platform at about half past nine o'clock; it wasn't later. And our folks got home may be 20 minutes after we did; not later than that. We had a team and buggy, and drove right home from the dance. The horses trotted a good share of the way home." Albert Linder was called on behalf of the defendant, and having, without objection, stated that he saw Mr. and Mrs. Bane, Maud M. Bane, and the defendant on the night of the fourth of July, 1893, the following occurred upon his further examination: "Q. At what place did you see them? (Plaintiff objects as immaterial. Objection sustained. Defendant excepts). A. I live a half mile this side of where Mr. Bane lives. Had a dance at my place on the night of July 4th, 1893. Q. Did you see Mr. Bane's folks there? (Plaintiff objects as immaterial, incompetent, and irrelevant. Objection sustained. Defendant excepts). Q. Did you see Maud Bane and Mr. Swafford there that night? A. Yes, sir. (Same...