State v. Weaver

Decision Date09 February 1918
Docket Number31557
Citation166 N.W. 379,182 Iowa 921
PartiesSTATE OF IOWA, Appellee, v. CARL WEAVER, Appellant
CourtIowa Supreme Court

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

DEFENDANT was convicted of the crime of lewd, immoral, and lascivious acts, as defined by Section 4938-a, Supplement to the Code 1913; and judgment of imprisonment in the county jail for an indeterminate period, not to exceed four months, was entered against him. From this judgment, the defendant appeals.

Reversed.

Parsons & Mills, and O. M. Brockett, for appellant.

H. M Havner, Attorney General, H. H. Carter, Assistant Attorney General, and Ward Henry, County Attorney, for appellee.

STEVENS J. WEAVER, GAYNOR, and SALINGER, JJ., concur. PRESTON, C. J., MR. JUSTICE LADD, EVANS, J., (dissenting).

OPINION

STEVENS, J.

The statute defining the crime charged is as follows:

"Any person over eighteen years of age who shall wilfully commit any lewd, immoral or lascivious act upon or with the body or any part or member thereof, of a child of the age of thirteen years, or under, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, or of such child, shall be punished by imprisonment in the penitentiary not more than three years, or by imprisonment in the county jail not more than six months, or by fine not exceeding five hundred dollars."

The indictment in this case charged lewd, immoral, and lascivious acts upon the body and person of Mildred Churchman, a child under the age of thirteen years. Minutes of the testimony of other girls under the age of thirteen years, who testified to similar acts committed by the defendant upon them at other times than the act complained of, were attached to the indictment. Before one of these girls was called by the State as a witness, the defendant's attorney called the attention of the court to the minutes of the testimony attached to the indictment, and objected to the county attorney's calling any of these witnesses, or attempting to offer the matters set forth in the minutes of their testimony in evidence upon the trial of this case. No record appears to have been made of these objections; but we gather, from the statements of counsel appearing in the record, that there was general discussion upon the question, and the court announced that the testimony would not be received. Later, one of the witnesses was called and sworn; but before any questions were propounded to her, the attorneys for the defendant objected to the witness' being examined relative to the alleged immoral acts committed upon her by the defendant, stating that the court had already announced its ruling upon the admissibility of the testimony and that any attempt upon the part of the State to offer the testimony would be prejudicial to the defendant, and asking that the county attorney be not permitted to question the witness as to said matters. To this objection, the county attorney answered that whatever discussion had preceded the calling of this witness had been in the absence of the defendant; that no record thereof had been had; that he believed the testimony admissible; and he asked permission of the court to propound questions for the purpose of making such record as would enable him to present the question of the admissibility of the evidence to the Supreme Court upon appeal.

Permission to do so was granted by the court, and the following questions were asked and objected to by the attorneys for defendant, upon the ground that same were incompetent, immaterial, irrelevant, and that the mere asking thereof was prejudicial to the defendant:

"Q. Do you recall anything happening, or him attempting to do anything to you down there, Jean?

"Q. What is the fact, Jean, as to him ever attempting to feel your legs or otherwise while you was in the post office? Now don't answer the question until after the ruling of the court.

"Q. Did he ever try to do anything to you down there in the post office?"

It is contended by counsel for the defendant that the county attorney, in calling the witness and asking the above questions, with knowledge that answers thereto would not be received over the defendant's objections, was guilty of such misconduct on his part as to require a reversal of this case. If the testimony sought was admissible, then the county attorney would be guilty of misconduct, if at all, only upon the theory that the previous announcement of the court had settled the law of the case, and the county attorney should have avoided further reference to the matters complained of.

In State v. Blydenburg, 135 Iowa 264, the court held the repeated attempts of counsel for the State to offer certain evidence, after the court had held the same inadmissible, misconduct. In that case, however, emphasis was given to the fact that a full record of the offer of the testimony had been made, and counsel was persisting in offering same over the rulings of the court. In the case at bar, the county attorney was granted permission by the court to call and propound questions to the witness, for the purpose of making a record of the offer, and the rulings of the court. If the offered testimony in this case was inadmissible, the prejudicial character of the questions propounded to the witness and the indicated character of the testimony sought could not have been otherwise than prejudicial to defendant.

It is argued on behalf of the State that the offered testimony comes within one of the well-known exceptions to the general rule excluding testimony of other similar offenses, and that same was admissible for the purpose of showing the intent with which the defendant did the acts charged in the indictment. There is a certain class of offenses in which the intent with which the act is performed is an essential issue, and the burden of proving the same rests upon the State, and evidence of similar offenses under certain restrictions is admissible. This rule is illustrated in cases where forgery, uttering forged instruments or passing counterfeit money, cheating by false pretenses, embezzlement, receiving stolen property, and numerous other offenses are charged, in which the intent with which the act was done might have been entirely innocent. State v. O'Connell, 144 Iowa 559, 123 N.W. 201; State v. Desmond, 109 Iowa 72, 80 N.W. 214; State v. Sheets, 127 Iowa 73, 102 N.W. 415; State v. Stice, 88 Iowa 27, 55 N.W. 17; State v. Vance, 119 Iowa 685, 94 N.W. 204. Such evidence is not admissible under the general rule in cases where the intent may be inferred from the nature of the act charged.

The New York Court of Appeals, in People v. Molineux, 168 N.Y. 264 (61 N.E. 286), said:

"There are cases in which the intent may be inferred from the nature of the act. There are others where willful intent or guilty knowledge must be proved before a conviction can be had. Familiar illustrations of the latter rule are to be found in cases of passing counterfeit money, forgery, receiving stolen property, and obtaining money under false pretenses. An innocent man may, in a single instance, pass a counterfeit coin or bill. Therefore, intent is of the essence of the crime, and previous offenses of a similar character by the same person may be proved to show intent."

See, also, People v. Lonsdale, 122 Mich. 388 (81 N.W. 277); State v. Spray, 174 Mo. 569 (74 S.W. 846). The offense charged in State v. Stice, supra, was clearly one in which the act might have been an accident, or committed without the thought of violating the statute in the respect charged. The burden, therefore, rested upon the State to prove the intent. In State v. Sheets, supra, the court based its holding upon the theory that, as the several like offenses of which evidence was received were committed upon the same occasion, each immediately following the other, the evidence was admissible, under the rule stated in State v. Robinson, 170 Iowa 267, 152 N.W. 590, as follows:

"The general rule is that the State is not permitted, in its efforts to establish the crime charged, to introduce evidence of another substantive offense; but the rule is that, where the acts are all so closely related in point of time and place, and so intimately associated with each other, that they form one continuous transaction, the whole transaction may be shown, what immediately preceded and what immediately followed the act complained of, for the purpose of showing the scienter or quo animo of the party charged. * * * Distinct, independent, substantive offenses, not related to the one charged, committed at different times or different places, cannot be shown against the defendant; but not so when the time, the place, the circumstances, and the parties, all have some relation to and are directly involved in the act charged, at the time of its commission or immediately before or after; and we think this is the doctrine of the cases cited."

The evidence of Mildred was that, when she went to the post office, where the defendant was, at the time, working, to post a letter, he took her in the rear of said post office placed her upon a bench, unloosened his own and her clothing, and proceeded so far in an effort to have sexual connection with her that she was sore for two or three days. It will be observed that the statute defines the offense as "lewd, immoral or lascivious act upon or with the body or any part or member thereof, of a child of the age of thirteen years, or under, with the intent," etc. The acts described by witness were lewd, immoral, lascivious. Defendant sustained no relationship toward Mildred from which an innocent intent upon his part could possibly be drawn. No possible explanation consonant therewith could be offered. The...

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