State v. Wilcoxen
| Decision Date | 15 December 1925 |
| Docket Number | No. 36817.,36817. |
| Citation | 206 N.W. 260,200 Iowa 1250 |
| Parties | STATE v. WILCOXEN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Fremont County; 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, of Shenandoah, for appellant.
Ben J. Gibson, Atty Gen., and Neill Garrett, Asst. Atty. Gen., for the State.
[1] 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:
“A challenge for cause may be made by the state or defendant, * * * for any of the following causes: * * * (5) Standing in the relation of * * * attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of a person alleged to be injured by the offense charged. * * *”
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.
[2] 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.
[3][4] 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, 68 Am. Dec. 708; 35 Cyc. 1331, II. This would also go to the question of whether or not the prosecutrix was of previous 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, 569, 170 N. W. 781.
[5][6] 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, 4 Ann. Cas. 1052;Booth v. State, 65 Tex. Cr. R. 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 Crim. Procedure, § 1483, p. 1944; Abbott's Crim. Trial Brief (3d Ed.) 1036. It is held that the right of the defendant to be present cannot be waived by his counsel. Ship v. State, 11 Tex. App. 46; 16 C. J. 818; 8 R. C. L. 90, § 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...
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State v. Grady
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State v. Grisafulli
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State v. Cowman
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