State v. Wilcoxen
| Decision Date | 15 December 1925 |
| Docket Number | 36817 |
| Citation | 206 N.W. 260,200 Iowa 1250 |
| Parties | STATE OF IOWA, Appellee, v. HARRY WILCOXEN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Fremont District Court.--J. S. DEWELL, Judge.
THE defendant was convicted by a jury under an indictment charging seduction. After a motion for new trial was overruled, he appeals.
Reversed.
Earl R Ferguson, for appellant.
Ben J Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
I.
On the voir dire it was developed that one of the jurors had the county attorney under employment in a civil matter, and the juror was challenged by the defendant on this ground. The material part of Section 13830, Code of 1924, is as follows:
It will be noted in the reading of this section that, if the relation of attorney and client exists between a juror and the defendant, or between the juror and the person alleged to be injured by the offense charged, in either event it is cause for challenge, and the fact that the juror and the county attorney stand in the relation of attorney and client is not a cause for challenge, within this section of the Code. We have so held in the case of State v. Carter, 121 Iowa 135, 96 N.W. 710. Further, the record does not show that the juror about whom complaint is made, sat in the trial of the case.
The prosecutrix claims that the seduction charged was brought about by a promise of marriage, based on a previous engagement which extended over some time. To meet this allegation, the defendant offered testimony showing that, during the time prosecutrix claimed the engagement existed, she was constantly in the company of other young men, going about with them at various times of the night to dances and public resorts. This testimony was objected to, and the objection sustained. This was error. The evidence was admissible for whatever it was worth on the question of whether or not an engagement existed between these parties, and such evidence was also admissible on the question of her previous chastity. State v. Brown, 86 Iowa 121, 53 N.W. 92; State v. Baldoser, 88 Iowa 55, 55 N.W. 97; State v. Davis, 193 Iowa 651, 187 N.W. 692; State v. Clemons, 78 Iowa 123, 42 N.W. 562; State v. Dolan, 132 Iowa 196, 109 N.W. 609.
II. Defendant tendered testimony to show that prosecutrix was given to the use of indecent language and to the telling of obscene stories. The court held that this testimony was not admissible. We have held otherwise in West v. Druff, 55 Iowa 335, 7 N.W. 636; Boak v. State, 5 Iowa 430; Andre v. State, 5 Iowa 389. See, also, 35 Cyc. 1331 (II). This would also go to the question of whether or not the prosecutrix was of previously chaste character. Chaste character is not limited alone to unlawful sexual intercourse, but means purity of mind and innocence of heart. State v. Valvoda, 170 Iowa 102, 152 N.W. 21; State v. Price, 157 Iowa 412, 138 N.W. 520; State v. Carson, 185 Iowa 568, 170 N.W. 781.
III. The court called the jury in, after they had had the case under consideration for a number of hours, and delivered additional instructions to them, in the absence of the defendant. Section 13806, Code of 1924, provides:
"If a felony is charged, the defendant must be personally present at the trial, but the trial of a misdemeanor may be had in his absence, if he appears by counsel."
It is a settled rule of law that, under these circumstances, the defendant was entitled to be present at the giving of these additional instructions, and the failure to so have his presence is reversible error. Havenor v. State, 125 Wis. 444 (104 N.W. 116); Booth v. State, 65 Tex.Crim. 659 (145 S.W. 923); Jones v. State, 26 Ohio St. 208; Bailey v. Commonwealth (Ky.), 71 S.W. 632; Roberts v. State, 111 Ind. 340 (12 N.E. 500); Pearson v. State, 119 Ark. 152 (178 S.W. 914); State v. Beaudin, 76 Wash. 306 (136 P. 137); 2 Wharton's Criminal Procedure 1944, Section 1483. It is held that the right of the defendant to be present cannot be waived by his counsel. Shipp v. State, 11 Tex. Ct. App. 46; 16 Corpus Juris 818; 8 Ruling Case Law 90, Section 48.
The State relies on State v. Hale, 91 Iowa 367, 59 N.W. 281, where a somewhat similar set of circumstances is discussed. The Hale case is not applicable to the present situation, for the reason that the charge was maintaining a liquor nuisance, which, under the statute at that time, was a misdemeanor, and, under the section above quoted (which was the same at that time as in the Code of 1924), the trial could be had in his absence, if he was represented by counsel.
The State further cites the case of State v. Olds...
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