28 N.W.2d 498
No. 47009.Supreme Court of Iowa.
July 29, 1947. Rehearing Denied September 19, 1947.
CRIMINAL LAW: Evidence — authentication of documents —
1 preliminary information — testimony of complainant sufficient. In a prosecution for adultery, the identification by the complainant of his preliminary information charging the defendant committed adultery with the complainant’s spouse, which information appears to be regular in form and to bear the magistrate’s jurat and the filing stamp of the clerk of the district court, is sufficient foundation to support the information’s admission in evidence for the limited purpose of showing a “complaint” by the spouse as required by statute, no testimony by the magistrate to identify it, or by the clerk to show the manner of its filing in his office, being necessary.
ADULTERY: Preliminary proceedings — “complaint” by spouse —
2 where case is prosecuted on county attorney’s information.
Where the crime of adultery is charged by a county’s attorney’s information, the “complaint” by spouse required by statute, may be made to the county attorney, and this may be shown to have been made in the form of a demand or request by the spouse for such prosecution. Section 702.1, C., ’46.
ADULTERY: Trial — “complaint” by spouse — evidence sufficient
3 to create jury question. In a prosecution under a county attorney’s information for adultery committed with complainant’s wife, a jury question on the issue whether the prosecution was commenced on the “complaint” of the husband is created by proof the husband filed a preliminary information and directed the county attorney to file said county attorney’s information.
ADULTERY: Preliminary proceedings — “complaint” by spouse —
4 burden on state to establish by preponderance of evidence — instruction. The fact that a prosecution for adultery was commenced upon the complaint of the spouse is not an element of the offense, but is merely a matter of procedure relating to the right to prosecute the charge, and it is therefore proper to instruct the jury that proof of such matter by a preponderance of the evidence, rather than beyond a reasonable doubt, is sufficient.
ADULTERY: Evidence — admissibility — association of defendant
5 with complainant’s spouse other than at time of commission of crime. In an adultery prosecution, evidence that defendant was frequently
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with the complainant’s wife both before and after the day the crime charged was allegedly committed is admissible as bearing on the relation and mutual disposition of the parties.
CRIMINAL LAW: Appeal and error — failure to request more
6 specific instructions or to except to failure — no ground of review preserved. Complaint that the trial court failed to instruct that certain evidence should be considered for a limited purpose only, cannot be heard on appeal where the defendant neither requested such an instruction nor excepted to the failure to so instruct.
CRIMINAL LAW: Trial — reception of evidence — motion to strike
7 — will not reach probative weight of evidence of identification. Denial of a motion to strike the entire testimony of a witness who testified he saw the defendant with a certain person in a parked truck, but on cross-examination admitted he did not see their faces, was not error, because the weight, if any, to be given the evidence of identification was a question for the jury.
WITNESSES: Credibility and impeachment — right to contradict
8 testimony elicited on cross-examination as to collateral and immaterial matter. Exclusion of evidence offered by a party to contradict testimony on collateral and immaterial matters injected into the record by such party upon his cross-examination of the other party’s witness is proper.
ADULTERY: Defenses — acquittal of complainant’s wife subsequent
9 to defendant’s conviction — reversal not required. Where a defendant is convicted of adultery committed with the complainant’s wife, the subsequent acquittal of the wife for the same crime does not require a reversal of the conviction, because in such cases the conviction of one defendant does not depend upon the conviction of the other.
Appeal from Shelby District Court. — R. KENT MARTIN, Judge.
Defendant was convicted of the crime of adultery and has appealed. — Affirmed.
William P. Welch and William H. Welch, both of Logan, and More More, of Harlan, for appellant.
John M. Rankin, Attorney General, Charles H. Scholz,
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Assistant Attorney General, and George O. Hurley, County Attorney, for appellee.
OLIVER, C.J.
A county attorney’s information filed July 9, 1946, charged defendant with adultery with Vaunda Rosman, the wife of Robert Rosman, on or about June 14, 1946. Defendant was tried and convicted. Without reviewing the evidence at the trial we may say it was sufficient to make the question of defendant’s guilt one of fact for the jury.
[1] I. Several of the assigned errors are based upon that part of section 702.1, Code of 1946, which provides no prosecution for adultery can be commenced except on the complaint of the husband or wife. Robert Rosman, the husband, testified he appeared before a justice of the peace and signed a preliminary information, Exhibit 1, charging defendant with adultery with Vaunda Rosman, June 14, 1946. Exhibit 1 is regular in form. The jurat recites it was subscribed and sworn to before said justice of the peace June 17, 1946. It was stamped filed in the office of the clerk of the district court, August 21, 1946.Defendant assigns error to its admission in evidence over his objections. He contends Rosman was not competent to identify it. However, its purpose was limited to the question of the complaint by Rosman. For such purpose his identification was sufficient. It was not necessary that it be identified by the magistrate before whom the complaint was made or that the manner of its filing in the office of the clerk of the district court be shown by that officer. The issue at this point was not how the officers performed their duties, but whether the prosecution was commenced on Rosman’s complaint. State v. Dingee, 17 Iowa 232.
[2] II. Rosman testified he directed the county attorney to file the county attorney’s information upon which defendant was tried in district court. Defendant contends such direction was not a complaint within the meaning of Code section 702.1. He quotes from State v. Loftus, 128 Iowa 529, 531, 104 N.W. 906, 907:Page 864
“The statement to the county attorney was not in the nature of a complaint, which in any event must be made to a committing magistrate or before the grand jury.”
This statement followed a statement in State v. Briggs, 68 Iowa 416, 420, 27 N.W. 358, 359:
“The prosecution may be commenced either by making the complaint before the grand jury or by filing a preliminary information before a magistrate.”
The statutes in effect when these cases were decided required that the formal charge in such cases be made by grand jury indictment. Statutes subsequently enacted, now chapter 769, Code of 1946, authorize what may be termed the alternative procedure of information by county attorney in lieu of indictment by the grand jury. This procedural enlargement requires a corresponding enlargement in the doctrine announced in State v. Briggs, supra. Therefore, we hold that where the crime of adultery is charged by county attorney’s information the “complaint” required by Code section 702.1 may be made to that officer and that this may be shown to have been made in the form of demand or request by the spouse for such prosecution.
[3] Under the record in this case the question whether the prosecution was commenced on Rosman’s complaint was for the jury. [4] III. However, defendant contends the State should have been required to prove this proposition beyond a reasonable doubt. Such is not the rule. That the prosecution was commenced on the complaint of the spouse is not an element of the offense but is merely a matter of procedure relating to the right to prosecute the charge. Hence the court did not err in instructing the jury that proof of this matter by a preponderance of the evidence would be sufficient. State v. Ledford, 177 Iowa 528, 159 N.W. 187; State v. Leek, 152 Iowa 12, 130 N.W. 1062; State v. Athey, 133 Iowa 382, 108 N.W. 224. [5] IV. Rosman testified he saw defendant with Vaunda Rosman frequently prior to June 14th, several times the followingPage 865
day, and once during the ensuing week. Defendant assigns as error the overruling of objections to questions by which this testimony was elicited, as tending to prove offenses other than the one charged. We do not find such objections in the record. However, although the trial court has some discretion in ruling upon objections to such evidence, it has been held admissible as bearing upon the relation and mutual disposition of the parties. State v. More, 115 Iowa 178, 88 N.W. 322; State v. Leek, supra, 152 Iowa 12, 130 N.W. 1062. Hence its admission was not error.
[6] Defendant asserts the jury should have been instructed that the evidence should be considered for such purpose only. It is sufficient answer that defendant neither requested such instruction nor excepted to the failure of the court to so instruct. [7] V. A witness who had testified he saw defendant and Mrs. Rosman in a parked truck, upon cross-examination testified he did not see their faces. Thereupon defendant moved to strike all the evidence of the witness. The motion was properly overruled. The weight, if any, to be given the evidence of identification was a question for the jury. State v. Donovan, 61 Iowa 278, 281, 16 N.W. 130. [8] VI. Vaunda Rosman had separated from her husband in March 1946. In the cross-examination of Mr. Rosman, defendant inquired into the circumstances of such separation. Thereafter defendant offered to show by his witness, Vaunda Rosman, that the testimony of Mr. Rosman thus elicited was false and that Rosman’s misconduct was the cause of the separation. Objections to such offer were sustained. No error appears here. The proposed inquiry was not relevant to any issue properly in the case or brought into it by the State.The court may properly exclude evidence offered by a party to contradict testimony on collateral and immaterial matters injected into the record by such party upon cross-examination of witnesses. State v. Boston, 233 Iowa 1249, 1252, 1253, 11 N.W.2d 407; Cokely v. State, 4 (Clarke) Iowa 477, 480, 481; Wau-kon-chaw-neek-kaw v. United States, 1 (Morris) Iowa 332.
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[9] VII. Although not shown in the record defendant states the trial of Vaunda Rosman resulted in her acquittal. This circumstance would not require a reversal, because in such cases the conviction of one defendant does not depend upon the conviction of the other. State v. Rounds, 202 Iowa 534, 210 N.W. 542. — Affirmed.
BLISS, HALE, GARFIELD, SMITH, MANTZ, MULRONEY, and HAYS, JJ., concur.