State v. Whalen

• Decision Date: 06 October 1896
• Citation: 98 Iowa 662,68 N.W. 554
• Parties: STATE v. WHALEN.
• Court: Iowa Supreme Court

98 Iowa 662

68 N.W. 554

STATE

v.WHALEN.

Supreme Court of Iowa.

Oct. 6, 1896.

Appeal from district court, Boone county; D. R. Hindman, Judge.

The defendant was accused of the crime of seduction, tried, found guilty, and adjudged to be imprisoned in the state penitentiary at Ft. Madison, at hard labor, for the term of 18 months. From that judgment he appeals. Affirmed.M. K. Ramsey and Jordan & Brockett, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

ROBINSON, J.

The crime of which the defendant was convicted is charged in the indictment as follows: “The said John Whalen on or about the 29th day of September, A. D. 1894, in the county aforesaid, willfully, unlawfully, and feloniously did seduce and debauch Jennie McBirnie, an unmarried woman of previous chaste character, all contrary to and in violation of law.” The appellant contends that this does not charge an offense within the meaning of that part of section 4296 of the Code which is as follows: “The indictment must contain: * * * (2) A statement of the facts constituting the offense, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” The statute under which the indictment was found is section 3867 of the Code, which provides that, “if any person seduce and debauch any unmarried woman of previously chaste character,” he shall be punishedas specified in the section. It is sufficient to charge an offense in the language of the statute when that shows the material facts which constitute the offense. State v. Butcher, 79 Iowa, 111, 44 N. W. 239;State v. Brewer, 53 Iowa, 735, 6 N. W. 62;State v. Curran, 51 Iowa, 113, 49 N. W. 1006;State v. Smith, 46 Iowa, 672;State v. Shaw, 35 Iowa, 575. It was said in State v. Curran, supra, that the words “seduce” and “debauch,” in the statement that the defendant “unlawfully and feloniously did seduce, carnally know, and debauch” a woman named, necessarily charge the offense of seduction, and that “they import the idea of illicit intercourse, accomplished by arts, promises, or deception, and have no other meaning.” That case was followed in State v. Conkright, 58 Iowa, 338, 12 N. W. 283. “Carnal knowledge” implies sexual intercourse. Therefore the use of the phrase “carnally know” was not essential, in the Curran Case, to charge the offense, for the reason that the words “seduce and debauch” included the same meaning. Hence the omission of the phrase from the indictment in this case was not material, and under the authority of the case cited the indictment must be held sufficient.

2. While introducing its evidence in chief, the state called and examined Samuel McBirnie as a witness. His name was not indorsed on the indictment, he was not examined before the grand jury, and his testimony was not presented with the indictment. After he had answered some questions of a preliminary nature, the defendant objected to his giving further testimony, “for the reason that no notice of the introduction of such testimony had been given as required by the statute, and he wasn't a witness before the grand jury, and that, if any notice whatever has been given, there was no notice given of the introduction by the witness of any evidence that would be material or competent or relevant.” The objection was overruled, and of that ruling the appellant complains. In view of the facts stated, it was necessary for the state, in order to use the testimony of McBirnie in support of the indictment, to give notice in writing that he would be offered as a witness, and of the substance of what it expected to prove by him. Code, § 4421. If a witness is examined in violation of that requirement, an error is committed which will be presumed to have been prejudicial. State v. Porter, 74 Iowa, 624, 38 N. W. 514. It is made to appear that there is on file in this case, in the district court, a notice of the introduction of the witness and of his testimony, which is sufficient in form and statement. Attached to it is a return, signed “E. E. Templin,” which, if competent, shows timely service of the notice on the defendant. But the return does not purport to have been made by an officer, and is not verified, and there is no other evidence of service. If the judgment of the district court depended upon formal proof of the service of the notice, it would have to be reversed; but a careful examination of the entire record leads us to the conclusion that the objection now made to the testimony of McBirnie is purely technical, without substantial merit, and that the defendant was not prejudiced by the admission of the testimony. All of it to which the objection can be held to apply is as follows: “I conversed with the defendant, Whalen, on or about May 25, 1894, when I told him Jennie had been confined, and had a boy baby, and needed assistance. He said he was going to do something for her next week. We had no talk of the paternity of the child.” The first part of the testimony relates to a matter about which there is no controversy. The only objectionable portion is the statement that “he said he was going to do something for her next week.” The defendant testified to having had sexual intercourse with the prosecutrix frequently, and does not deny that he is the father of the child, but denies that their intercourse was the result of a promise of marriage, and denies the alleged seduction. He was liable for the support of the child. Code, §§ 4715-4722. And his promise to “do something” for the mother, under the circumstances which existed at the time, did not tend to show that he was guilty of the crime of seduction. Moreover, after the verdict was returned the defendant filed a motion for a new trial, based upon 12 different grounds, but the error now urged was not one of them. Evidently it was not then considered prejudicial. We are required to disregard technical errors which do not affect the substantial rights of the parties. Code, § 4538.

3. The appellant complains that the court erroneously rejected the testimony of Edward Whalen, offered to show that the prosecutrix refused to marry the defendant. It appears, however, that the rejected evidence only went to the procuring of a license, and to the agreement of the defendant to marry the prosecutrix. The witness was permitted to testify that after the arrest of the defendant the prosecutrix visited him in jail; that he there told her he would do as he agreed, and that she said it would be all right; that the witness afterwards told the prosecutrix that he had the license, but that she then objected to the proposed marriage. This was sufficient for the purpose for which a refusal of the woman to marry her alleged seducer may be shown. State v. Thompson, 79 Iowa, 106, 45 N. W. 293;State v. Mackey, 82 Iowa, 394, 48 N. W. 918.

4. The evidence tended to show that at one time the prosecutrix agreed to accept $125 in settlement of her claims against the defendant. This was wholly immaterial to any issue in the case, and the jury was properly instructed to disregard it. State v. Deitrick, 51 Iowa, 469, 1 N. W. 732.

5. The indictment was found on the 17th day of January, 1895. The defendant stated as a witness that he had sexual intercourse with the prosecutrix in the year 1891; and in some of her answers she stated that the time of the seduction was September 29, 1892, although she afterwards corrected the statement, and said the year was 1893. During the time the state was introducing its evidence, the defendant offered an instrument of which the following is a copy: “Comes now the above-named defendant, and specially pleads that this prosecution is barred by the statute of limitations, and asks the court to charge the jury that if they have reasonable doubt whether the offense charged in the indictment was committed within eighteen months prior to the 17th day of January, 1895, if committed at all, they must acquit defendant.” The court refused to allow the paper to be considered as a plea, but, in the charge which it gave, instructed the jury that, if the offense charged was committed 18 months or more before the finding of the indictment, the defendant could not be convicted. The appellant contends that the court erred in not permitting him to plead the bar of the statute, and relies upon the cases of State v. Hussey, 7 Iowa, 409, and State v. Groome, 10 Iowa, 312. The first of these cases held that a defendant who relies upon the bar of the statute should plead it; and the other, that it could not be raised by demurrer, by instruction, or motion for a new trial, but should be specially pleaded. Neither of those cases was decided under existing statutes, but under the Code of 1851. Section 2957 of that Code provided that: “There are three kinds of pleas to an indictment which may be pleaded by the defendant: First, guilty; second, not guilty; third, a former judgment of conviction or acquittal of the offense charged in the indictment. * * *” In section 4714 of the Revision of 1860, and in section 4359 of the Code of 1873, the language is, “There are but three pleas to...