State v. McGinn

Defendant, on tbe day set for tbe trial made application for a continuance over tbe term, on tbe ground tbat a material witness subpoenaed by bim bad 1 refused to respond. We may concede tbe diligence of defendant in attempting to secure tbe presence of tbis witness, and also the materiality of tbe evidence sought to be obtained, but we do> not think it is made to appear tbat tbe witness’ presence could be secured by ordinary methods at the ensuing term. He bad disobeyed a subpoena once, and there was no reason to think tbat be would come at any time without compulsion. Defendant should havei applied for an attachment. Had be done so, tbe court would have doubtless granted' it, and given bim an opportunity to procure tbe witness’ presence by force. If not, be would have bad just ground of complaint. There was no error in overruling tbe motion as made.

II. 'One Hoagland, a witness for tbe state, testified to seeing in tbe room of prosecutrix a letter to her which purported to be signed by defendant. He was allowed to state 2 the contents, which were of a material nature. This evidence was erroneously received. While a sufficient foundation bad been laid for tbe receipt of secondary evidence, yet there was no showing tbat tbe letter was written by defendant, other than tbat bis name was subscribed to it. No attempt was made to otherwise identify it as bis. See Greenleaf Evidence, section 557.

III. Tbe seventh paragraph of tbe court’s charge is not accurately worded. It is open to the objection tbat it authorizes tbe jury to find tbe corroborative facts necessary to make out this offense in tbe testimony of tbe pros-ecutrix, 3 to some extent, and characterizes tbe fact of her giving birth to an illegitimate child as a corroborative circumstance. In both of these respects tbe instruction is objectionable. Tbe corroboration must he by evidence other than that of prosecutrix. State v. Kingsley, 39 Iowa, 439; State v. Lenihan, 88 Iowa, 670. While the fact of the *643birtb of an illegitimate child was admissible to show1 that some man bad illicit intercourse with prosecutrix, it did not tend to connect defendant with the act.

Of the remaining errors, some are without merit, ánd the others are not likely to again arise. As a matter of precaution, however, we may suggest that more latitude should have been allowed in the cross-examination of the witnesses O’Brien and Fitzgerald. A new trial will be ordered, and the judgment reversed.