State v. Walker

• Decision Date: 25 June 1925
• Docket Number: No. 36694.,36694.
• Citation: 200 Iowa 341,204 N.W. 215
• Parties: STATE v. WALKER.
• Court: Iowa Supreme Court

200 Iowa 341

204 N.W. 215

STATE

v.WALKER.

No. 36694.

Supreme Court of Iowa.

June 25, 1925.

Appeal from District Court, Polk County; Jos. E. Meyer, Judge.

Trial on an indictment for sodomy resulting in a verdict of guilty. Defendant appeals. Affirmed.David W. Fletcher, of Des Moines, for appellant.

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

DE GRAFF, J.

The defendant, Viola Walker, was jointly indicted with one Richard Eddy for the crime of sodomy, and on her motion was tried separately on a plea of not guilty. After verdict of guilty and the overruling of motion for new trial, judgment was entered in conformity to law.

We will not stain the pages of judicial opinion by detailing the revolting and nauseating evidence disclosed by the record. The testimony of the three eyewitnesses to the act upon which the indictment is predicated is not traversed, and there is no denial on the part of the defendant, except as contained in her plea of not guilty. Her sole defense is that she was so intoxicated at the time of the commission of the crime charged as to be incapable of entertaining an intent. The defense rests upon the record made by the state. No witness was offered by the defendant, and she did not testify. We are not advised whether the court instructed the jury on the question of intoxication, as the record before us does not set out the charge of the court. This matter, therefore, must be considered under the proposition that the verdict is not supported by the evidence, in that the defendant was so intoxicated that she was incapable of forming a criminal intent.

[1][2] Drunkenness is not strictly a defense to crime, but it is defensive matter which the defendant must establish affirmatively by a preponderance of the evidence. State v. Crietello, 197 Iowa, 772, 197 N. W. 902;State v. Harrison, 167 Iowa, 334, 149 N. W. 452;State v. Sparegrove, 134 Iowa, 599, 112 N. W. 83. It does not avail in this case. The three eyewitnesses to the repulsive scene were law officers. The defendants were then and there arrested and incarcerated in the county jail. It is evident from the testimony of the eyewitnesses, who were the only witnesses upon the trial, that the defendant and her codefendant had been drinking intoxicating liquor, and that they were somewhat under the influence of liquor. On cross-examination one witness expressed his opinion that the defendant “was committing the act of her own volition” and gave a reason for that opinion which we will not recite. The witness was further asked if the defendant was so far under the influence of intoxicating liquor that she did not know what she was doing, to which he replied, “I would say she knew what she was doing, yes.” We find no other reference to this matter in the record. Sufficient to state that there was no attempt on the part of the defendant to establish her affirmative defense, except through the cross-examination of the witnesses for the state. Various degrees of...