State v. Terry

Decision Date08 April 1925
Docket NumberNo. 36617.,36617.
PartiesSTATE v. TERRY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Shelby County; J. S. Dewell, Judge.

Defendant, Terry, on indictment of the grand jury, was convicted of the crime of incest, and, from judgment entered thereon, he appeals. Reversed and remanded.Ernest M. Miller, of Harlan, for appellant.

Ben J. Gibson, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

ALBERT, J.

The daughter, Laurenia Eckerd, was the only witness in behalf of the state. After she had given her testimony, defendant made a motion for a directed verdict in his behalf, and, before the same was ruled on, the state made application to introduce further testimony, which application was granted. Prosecuting witness was again placed on the witness stand. At the close of her testimony the motion to direct a verdict was renewed by the defendant, and was again overruled by the court. Defendant then testified in his own behalf, and at the conclusion of his testimony both sides rested, and the defendant again renewed his motion to direct a verdict, which was again overruled.

[1] The point urged by the defendant was that the court erred in permitting the state to reopen its case, after it had rested, to introduce further testimony. We have repeatedly held that this is a discretional matter with the court, and that, unless some abuse of discretion is shown, it is not reversible error.

The order of trial in criminal cases is marked out in section 5372 of the Code of 1897. After providing for the preliminaries, it is provided that the state may offer the evidence in support of the indictment. Defendant may then offer evidence in support of his defense. Parties then may offer rebuttal evidence only, unless the court, for good reasons, in furtherance of justice, permits them to offer evidence upon their original case. Under this section the procedure had in the case at bar is approved. State v. Flynn, 42 Iowa, 164;State v. Burk, 88 Iowa, 661, 56 N. W. 180;State v. Johnson, 89 Iowa, 1, 56 N. W. 404;State v. Leonard, 135 Iowa, 371, 112 N. W. 784;State v. Thomas, 158 Iowa, 687, 138 N. W. 864.

The court did not err by reopening the case and allowing the further examination of the prosecuting witness.

A point is made that the prosecuting witness was not corroborated as required by statute. It is apparent from the casual reading of section 5488 of the Code of 1897 (section 13900 of the Code of 1924) that the crime for which the defendant is on trial is not covered by that section, and, if corroboration is necessary in an incest case, it must be by reason of section 5489 of the Code of 1897 (section 13901 of the Code of 1924), which reads as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

[2] It is well settled in this state that, where the prosecuting witness voluntarily participates in the incestuous act, she is an accomplice and her testimony alone is not sufficient to sustain a conviction, but there must be other testimony aside from hers which shall tend to connect the defendant with the commission of the offense. State v. Pelser, 182 Iowa, 1, 163 N. W. 600;State v. Heft, 155 Iowa, 21, 134 N. W. 950;State v. Goodsell, 138 Iowa, 504, 116 N. W. 605;State v. Brown, 146 Iowa, 113, 124 N. W. 899.

[3] Where, however, the prosecuting witness is not an accomplice, that is to say, where she is the victim of force, fraud, or undue influence, and does not willingly join in the incestuous act, her testimony alone may be sufficient to sustain a conviction. State v. Goodsell, supra; State v. Stalker, 169 Iowa, 396, 151 N. W. 527, L. R. A. 1915E, 1222;State v. Kouhns, 103 Iowa, 720, 73 N. W. 353;State v. Rennick, 127 Iowa, 294, 103 N. W. 159, 4 Ann. Cas. 568. It is therefore apparent, from this line of cases, that whether or not the prosecuting witness is an accomplice depends upon whether or not she voluntarily submitted to the incestuous acts.

The question of what is corroborative testimony under such circumstances is a question that has been somewhat clouded by some expressions in our decisions, but a careful reading of the cases and the statute should not leave this question in doubt. The corroboration required under the statute is not supplied by merely showing the commission of the offense or the circumstances thereof, but it must go farther and be of that nature and character which shall tend to connect the defendant with the commission of the offense. It is so nominated in the statute. This question has been elucidated in numerous cases, among which are State v. Duncan, 158 Iowa, 652, 138 N. W. 913;State v. Blackburn, 136 Iowa, 743, 114 N. W. 531;State v. Dolan, 132 Iowa, 196, 109 N. W. 609;State v. Coffman, 112 Iowa, 8, 83 N. W. 721.

The testimony in this case shows that the prosecuting witness was a woman past 30 years of age, who had been married for 4 years, when her husband died. She formerly lived in Oklahoma and later moved to Iowa. She was subject to attacks of epilepsy from her early youth, they occurring quite frequently, but she says in her later life the hiatus between these attacks was longer. She claims that these indulgences between her and her father occurred at various times, covering some 18 months prior to his indictment. At another place in her testimony she says they commenced less than a year before that time. The peculiarity of this woman's testimony is that no date of any kind or character is fixed as to any of the alleged acts. The whole thing is hazy, indefinite, and uncertain.

The state was required to elect on which of the various acts claimed by her it would stand, and chose the one of October 1, 1922; but we have diligently sought the record and, after reading and re–reading it, we are unable to find any evidence of any illicit act between these people on that date. The exact date is unimportant in many respects, but, on account of certain questions raised herein, it is of vital importance. It is the claim of the state that this plaintiff at no time and no place consented to any of these illicit acts; she claims some of them, at least, occurred while she was under an epileptic fit or just recovering therefrom, and that she was not in a condition to consent, and therefore was not a voluntary participant. The court seems to be of this opinion, and undertook to submit to the jury the question of whether or not she was physically or mentally able to consent, as a question for the jury to decide, and then attempted to apply the rule of corroboration heretofore set out. In submitting this question to the jury, he gave instruction 14, which reads as follows:

“Testimony has been introduced, tending to show that the prosecuting witness, Laurenia Eckerd, was, at the time of the alleged offense, afflicted with a bodily, and perhaps mental disease which, to some extent, incapacitated her from acting as, or exercising the acts of, a normal person, and, in considering her claim that she did not consent to any acts of sexual intercourse, if any were committed between her and the defendant, you may and should take into consideration her physical and mental condition, so far as shown by the evidence, in determining whether or not she did, in fact, consent to such intercourse, if such intercourse in fact occurred.

If you find from the evidence that said Laurenia Eckerd was in a normal state of mind, and normal physical condition at the time of the alleged offense, and voluntarily consented thereto, if any offense was committed, then, and in that event, the defendant cannot be convicted in this...

To continue reading

Request your trial
10 cases
  • Lusby v. State, 265
    • United States
    • Maryland Court of Appeals
    • May 26, 1958
    ...that the woman will be an accomplice where she freely and willingly consents to the sexual union. See, for example, State v. Terry, 1925, 199 Iowa 1221, 203 N.W. 232; State v. Clark, 1915, 27 Idaho 48, 146 P. 1107; Knowles v. State, 1914, 113 Ark. 257, 168 S.W. 148; Solomon v. State, 1901, ......
  • United States v. Stirone
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 9, 1958
    ...relations with a particular person. E. g., Hodge v. United States, 1942, 75 U.S. App.D.C. 332, 126 F.2d 849 (incest); State v. Terry, 1925, 199 Iowa 1221, 203 N.W. 232 (incest); Sykes v. State, 1904, 112 Tenn. 572, 82 S.W. 185 (statutory rape). An extensive annotation on the subject is cont......
  • State v. Rankin
    • United States
    • Iowa Supreme Court
    • November 10, 1970
    ...commit the act with which he is charged. State v. Beltz (1938), 225 Iowa 155, 159--161, 279 N.W. 386, 388--389; State v. Terry (1925), 199 Iowa 1221, 1228, 203 N.W. 232, 234; State v. Heft (1912), 155 Iowa 21, 36, 134 N.W. 950, 956; State v. King (1902), 117 Iowa 484, 489--491, 91 N.W. 768,......
  • State v. Mason
    • United States
    • Iowa Supreme Court
    • December 20, 1972
    ...510, 228 N.W. 353 (1929) we found no error when the State was allowed to reopen for the purpose of showing venue. In State v. Terry, 199 Iowa 1221, 203 N.W. 232 (1925) we said it was not error to allow the State to reopen for further testimony by the prosecuting witness. We have further obs......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT