State v. Wickliff

Granger, J.

I. The alleged seduction took place

about the sixth of March, 1892. On the twenty-eighth of February, 1893, the prosecuting witness, one Carrie McElrea, gave birth to a child. As a witness she stated that she first met the defendant in December, 1891; that he took her home from a Christmas tree on December 24, 1891, and remained with her until 12 o’clock; and that after that they were together “like all young people are” till the last of February or the first of March, when he promised to marry her, and fixed the time for their marriage in December following, and that because of this promise she consented to sexual intercourse with him. It appears from her testimony that her intimacy continued until June 12, 1892, at which time she claims to have become pregnant. Her testimony shows that their talk of marriage continued until as late as September, 1892. The defendant was a witness at the trial, and denied any promise or talk of marriage, but said nothing about the fact of the intercourse.

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*387 The assignments of error bring in question the rulings of the court on the admissions of evidence. Appellant complains because the court permitted the *388 state to prove the hirth of the child February 28, 1893,. because it in no way tended to prove the fact of seduction in March, 1892. The claim of the state is that illicit intercourse between the prosecuting witness and the defendant continued as late as June 12, 1893, and even later, and that the defendant is the father of the child. In State v. Mackey, 82. Iowa, 393[ 18 N. W. Rep. 918 ], which, was an indictment, for seduction, it is said: “The state was permitted to-show that the -defendant continued to have sexual intercourse with the prosecutrix for months after the first connection. It is true, if the prosecutrix was seduced, the crime was complete when she first surrendered her person to defendant; but subsequent acts, were proper to be considered by the jury in determining whether the criminal intent existed at the first act,, and whether the defendant in good faith intended to. perform his promise.” It is'there held that such acts, may tend to prove that there was seduction. The birth of the child establishes the fact that there was intercourse at some time, and, if the jury should believe-that it was with the defendant, it would be corroborative of the testimony of the prosecuting witness -as to their criminal intimacy, and tend to prove the offense charged. We think the testimony was properly admitted.

2 II. There is a complaint that the court refused to permit the defendant to show that other men were with the prosecuting witness about the time she became-pregnant, as tending to show that defendant was not the father of the child. It cannot well be questioned but that the evidence of that character was proper. One Merriman testified that he kept, company with her the fore part of 1892, and of keeping her company one night in June, he thought. He said he was with her till eleven o’clock, and “after-the folks had gone to bed.” He was asked to state *389 her demeanor towards him, — whether or not she fondled, caressed, and embraced him; whether or not she put her arms around him, and kissed him; and whether ■or not she treated him as her suitor. These questions were excluded as incompetent or immaterial. We think they should have been answered, as the answers might bear directly on the fact of whether she was ax that time engaged to the defendant. However, following these rulings, the witness said: “The night I kept her company we sat close together. I had my arms around' her. She made no resistance to my embraces. I kissed her.” The questions leading to this testimony do not appear in the abstract, and we understand it to be a statement of what occurred on the night in question. The testimony seems to have been admitted finally without objection. We notice that the questions refer to her conduct towards him, and the testimony to his conduct towards her, and her ■demeanor because of it; but we cannot think that such a distinction was maintained by the court, and hence we think that the testimony presents the facts. In view of this, there was no prejudicial error.

3 III. Sarah McElrea is the mother of the prosecuting witness, and says in her testimony: “Ulrick Speed was at our house one night with Carrie, and May Mendenhall was with Sam Russell. I do not know whether they were in a buggy or not.” She was then asked: “Can you tell what time in the evening it was that night when Ulrick Speed left?” And also: “Had the family retired for the night before Mr. Speed left?” The court excluded the questions as immaterial, or not proper cross-examination. The ruling was correct. It is claimed that she had before said that no one else than defendant was keeping company with Carrie at the time, and that it was proper cross-examination on that point. In her *390 direct testimony, speaking of the defendant’s attentions to Carrie, she said, “No one else was keeping company with her at the time.” That is all of her direct testimony on that subject. Had the questions excluded been answered, there could have been no contradiction of the fact stated on the direct examination, for neither her testimony as to Speed nor the questions refer to the time of his attentions to Carrie. They fix no time. The fact that the testimony after-wards disclosed the facts more definitely would not render the ruling erroneous, if correct when made. There was no error in the ruling.

4 IY. The prosecuting witness was asked by the state whether or not the defendant ever made to her a promise of marriage. The question was objected to as suggestive, by which is meant leading. We think not objectionably so. It is true that it could be answered by “Yes” or “No” but that does not of necessity make it leading, and the question did not indicate which answer was desired. State v. Watson, 81 Iowa, 380 [ 46 N. W. Rep. 868 ]; Woolheather v. Risley, 38 Iowa, 486 .

5 Y. During the direct examination of Sarah McElrea she said that she told defendant, in a conversation she had with-him, wherein defendant had referred to one Sell Burrell as one who might be the guilty party: “We would like to see Sell Burrell ourselves. We could have use for him.” She was asked’on cross-examination what she meant by that, and the question was excluded, and properly so. The question only called for the purpose she (the witness) ■had in asking the question. Her meaning or purpose was of no moment whatever. It was not a fact that could affect either party to the suit.

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*390 YI. ’ The record shows the following in the cross-examination of the prosecuting witness: “Q. You *391 kept company with Clayton Jones prior to your keeping company with Albert, didn’t you? (Objected to by state. Sustained. Defendant excepts.) Q. When did you cease keeping company with Clayton Jones, if you ever did? (Objected to as incompetent, immaterial, and not cross-examination. Sustained. Defendant excepts.)” Complaint is made of the rulings, and it is said that they bear on the fact of previous chastity of the prosecutrix. The questions, of themselves, do not indicate such a bearing. They indicate an inquiry about matters prior to the meeting the defendant; and, if the intention was to pursue the inquiry with a view to such a purpose, as is indicated in argument, it should have been made more manifest. The court should not be adjudged ia error for not assuming such a purpose.

VII. It is lastly urged that the verdict is without support in the evidence. That the defendant had intercourse with the prosecuting witness is not doubtful. The doubts arise on the question of her previous chastity. In this réspect the proof is such as to make the question one of much doubt, but it was a question for the jury. That she was indiscreet in many particulars is not to be questioned. She was a girl some sixteen years of age, and evidently without á comprehension of many of the proprieties observed by and demanded of her sex. The claim of previous unchastity is based on inferences drawn from her conduct, and not ort any known act of intercourse, or any direct proof of it. The case, in this respect, is equally as favorable to the state as State v. Knutson, 91 Iowa, 549 [ 60 N.W. Rep. 129 ], and other cases determined in this court. In this connection it is further urged that the evidence as to the promise of marriage, which is the only act claimed to be employed to secure the intercourse, is not sufficiently proven. The testimony of the defendant and the prosecuting witness is in plain conflict on that question. It *392 is, however, urged that her conduct and other facts so conclusively show the fact to be untrue that the verdict should not be permitted to stand. While it is true that her conduct, in many respects, was quite incompatible with the existence of such a relationship, it was not so much so as to make it conclusive against her claim. The judgment of the district court is affirmed.