
    The State of Iowa, Appellee, v. Jacob Baldoser, Appellant.
    1. Criminal Law: omission op defendant to testify: comment by state's attorney: new trial. Where during the trial of a criminal cause, before the close of the evidence in chief for the state, the attorney for the prosecution in the course of argument to the court upon the admissibility of certain testimony, but in the presence and hearing of the jury, remarked, "they have the same right we h^ve to put the defendant upon the stand, and let him tell his story, the same as we have,” held, that the stalement was within the prohibition of section 3G36 of the Code against reference by the state’s attorney to the failure of the defendant to testify in his own behalf, and entitled the defendant to a new trial upon that ground.
    2. Seduction: evidence: corroboration of prosecutrix. Where in a criminal prosecution for seduction the prosecutrix testifies, that she submiited to the defendant’s solicitalions under promise of marriage, evidence of others that within the time the crime is alleged to have been committed, the defendant and prosecutrix aeted as lovers, and that the defendant stated that he and the prosecutrix were to be married, is sufficient- to go to the jury as testimony in corroboration of the prosecutrix.
    3. -: -. It is competent in such ease for the defendant to show that during the time he is alleged to have been keeping company with the prosecutrix, the latter visited the house of a witness in company with another man, and was introduced by him as his wife.
    
      Appeal from Keokuk District Court. — Hon. Dayid Byan, Judge.
    Saturday, May 13, 1893.
    The defendant was indicted, convicted, and sentenced for the crime of seduction, and he appeals.
    
      Reversed.
    
    
      C. H. Mackey, for appellant.
    
      John Y. Stone, Attorney General, and Thos. A. Cheshire, for the State.
   Kinne, J.

I. An exception was taken by the defendant to the following statement made by one of the counsel for the state to the court, during the trial, and m the presence and hearing of the jury, and while he was arguing the question as to the admissibility of certain testimony, viz.: “They have the same right we have to put the defendant upon the stand, and let him tell his story, the same as we have.” When this statement was made the state had not yet closed its case in chief, and the defendant had not then been afforded an opportunity to elect whether or not he would testify. Our statute, Code, section 3636, among other things, provides that defendants in criminal cases shall be competent witnesses in their own behalf, but can not be called as witnesses by the state, and, “should a defendant not elect to become a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state, during the trial, refer to the fact that the defendant did not testify in his own behalf; and, should he do so, such attorney or attorneys will be guilty of misdemeanor, and defendant shall, for that cause alone, be entitled to a new trial.” The attorney general contends that the statement made was not within the inhibition of the statute; that no reference was made to the fact that the defendant did not testify in his own behalf; that it was simply the statement of a legal proposition. We are called upon to determine whether such a statement, made prior to the time when the defendant could be called as a witness, comes within the statute referred to. In this case the defendant did not testify.

In State v. Moxley, 102 Mo. 374, 14. S. W. Rep. 969, 15 S. W. Rep. 556, counsel for the state, in his opening argument to the jury, said: “They have offered not a word to show how she came to her death. Not a neighbor is put on the stand to show what he said caused her death. There they are, alone. She is in perfect health, and in the nighttime she comes to her death suddenly. We say that common honesty, common decency, requires at the hands of that man, when he sees his neighbors, to tell how she came to her death.” It will be observed that there was no reference here directly to the fact that the defendant had not testified, and yet the court held that the language used “was an adroit and insinuating attempt indirectly to accomplish what could not have been accomplished by a direct statement.” The Missouri statute provides that the failure of the defendant to testify “shall not be referred to by any attorney in the case.” The statement was held to be a plain violation of the statute. See Jordan v. State, 29 Tex. App. 595, 16 S. W. Rep. 543. The Texas statute provides that the fact that the defendant has failed to testify shall not “be alluded to or commented on by counsel in the cause,” and under it, it is held, that a new trial should be awarded when allusion was made to the fact, and the district attorney read part of the legislative act prohibiting such allusions and comments. Hunt v. State (Tex. App.), 12 S. W. Rep. 737. In Indiana, under a statute similar to that in force in Texas, it is held that allusions by counsel for the state to the fact that the witness has not testified can not be cured by the court’s admonishing counsel, or instructing the jury, to pay no attention to what he said. Long v. State, 56 Ind. 182. In Massachusetts it is held that the protection of the statute is not waived by any language .used by the defendant’s counsel in the heat of argument; that it could only be waived by the defendant’s going upon the stand as a witness. Commonwealth, v. Scott, 123 Mass. 239; Commonwealth v. Nichols, 114 Mass. 285. The statute of Illinois provides that the court shall not “permit any reference or comment to be made to or upon such neglect” to testify. In that state it is held that the subject must not be referred to at all, and that the fact that when objection was made the court stopped counsel, and admonished the jury, was of no avail. Quinn v. People, 123 Ill. 333, 15 N. E. Rep. 46. See, also, Baker v. People, 105 Ill. 452; Austin v. People, 102 Ill. 261; Angelo v. People, 96 Ill. 209. In West Virginia, under a statute providing, “nor shall any reference be-made to, nor comment upon, such failure, by any one-during the progress of the trial, in the hearing of the-jury,” and when, prior to the state’s closing a case, the attorney for the state suggested to the attorneys for the prisoner, in the hearing of the jury, “that the attorneys for the prisoner could prove this fact,” that is, that a certain matter had been communicated to the defendant, “by their own parties, when they were-put upon the stand,” which was objected to, and .the-court announced that it disapproved of the remark, whereupon counsel said he referred to the witnesses for tlie defense, not to the parties, it was held that, the-time not having arrived when the defendant could testify, the language used was not objectionable. State v. Ice, 34 W. Va. 244, 12 S. E. Rep. 695. In Coleman v. State, 111 Ind. 563, 13 N. E. Rep. 100, the prosecutor, in making his opening statement of the case to the jury, said: “You should watch the evidence closely. We-do not know that the defendant will go upon the stand. He has not been sworn. I noticed that. If he should go on the stand, you should watch.” At this point the statement was^ objected to, and the objection sustained, whereupon counsel for- the state said, “I withdraw the statement from the jury.” Afterwards th& defendant did testify as a witness in his own behalf. The statute of that state provides, if the defendant “do-not testify, his failure to do so shall not be .commented upon or referred to in the argument of the cause, nor-commented upon, referred to, or in any manner considered, by the jury trying the same.” The law also makes it the duty of the court, in such case, in its charge, to instruct the jury as to their duties under this statute. In that case the same claim seems to have been made as in the case at- bar, that the remarks are not within the literal prohibition of the statute. Touching this, the court said that the remarks, “although not within the literal prohibition of the statute, were nevertheless in palpable violation of its spirit and purpose; * * * that the prosecutor may not evade the statute by ingeniously injecting into his opening statement remarks which do all the mischief which the prohibitory part of the statute was intended to prevent. The effect of the remarks must have been either to coerce the defendant to testify, as has been said, “with a halter about his neck, or to induce him to remain silent.”

Our own statute is more rigid in its provisions than any we have been able to find, for ours provides, not only that the fact of the defendant’s failing to testify shall not be referred to during the trial, but a violation of the statute is made a misdemeanor, and such reference, alone, entitles the defendant to a new trial. In State v. Graham, 62 Iowa, 111, it is said: “The statute is explicit that the district attorney shall not refer to the fact that the defendant did not testify in his own behalf. There is nothing which he can say about the fact that will justify a reference to it, and courts should hold district attorneys to a strict observance of their duty in this respect.” In State v. Ryan, 70 Iowa, 156, the language objected to was used, as in the case at bar, in an argument as to the admissibility of testimony. The court said: “If reference can be made to the fact that the defendant has not testified in his own behalf, in arguments to the court, then such a reference may be made in every case, and thereby the statute will be nullified.”

No question arises, upon the record in the case at bar, as to whether or not the language objected to was used. No admonition was given to the jury touching the use of this language. Now, it may be conceded that the reference by counsel in the words used could not have been to thefactthat the defendant had not testified in the case, because up to that tipie he had no opportunity so to do. The state’s case had not been closed. So, while the case is technically not within the statutory inhibition, it seems to us it is clearly contrary to the spirit and object of the statute. If the contention of the attorney general is correct, then counsel for the state may at all times during a trial, prior to the time the defendant has an opportunity to go upon the stand, comment upon the fact that the law permits him to testify in his own behalf; and draw inferences .as to the effect of his failing to do so. Such a construction of the statute would deprive the defendant of every benefit which the legislature, by its enactment, intended to confer upon him. The lawmakers certainly never intended that counsel for the state might comment on and refer to the fact that the defendant might testify in his own behalf at all times prior to theelosing of the state’s case in chief, but must not afterwards refer to the fact that he had failed to take advantage of his privilege to testify. The mischief is done by directing the minds of the jurors to the fact that a defendant may testify, in advance of the time when he may be called as a witness, as well as if the comment be made after he has elected not to testify. The language, being within the spirit of the prohibition of the statute, was properly objected to, and its use was a violation of the .statute. In State v. Ryan, 70 Iowa, 156, it is said: “Under the statute we are not permitted to inquire whether the defendant was prejudiced. This must be conclusively presumed.” The provisions of the statute are absolute that in case of its violation a new trial .shall be granted.

II. The indictment charged that the defendant seduced the prosecutrix on December 13, 1890. Theprosecutrix testified that the act was accomplished on July 9, 1890, and her cjjj^ was born on October 16, 1891. Lettie Aker man, the prosecutrix, testified that she first became acquainted with the defendant in March, 1889; that he went home with her from protracted meeting, and sat up with her; that afterwards he took her to-church and visited her after they arrived home; that from time to time he continued such attentions; that, he wrote heir letters when she was away from home. She went away shortly after July 4, 1889, and was-absent five or six weeks. She had nothing to do with the defendant then until February, 1890. From that time on the defendant kept company with the prosecutrix. On July 4, 1890, he took her home from a. celebration. At that time he told her that, if she would do as he wanted, he would marry her. He then solicited connection with her, which she refused. On the-sixth of the same month they met again, and on the ninth she says she submitted, and had sexual intercourse with him, because he promised to marry her. After this he continued his visits until Mai’ch, 1891. In February, 1891, she told him of her condition, and he refused to marry her, and said he was engaged to another.

The defendant claims that the prosecutrix is not corroborated in her statements. The witness Shaw testifies that the defendant began paying attentions to the prosecutrix two years before the trial; that he came-to his place to see her, brought her from church, and. sat up with her, — fixing several times. Flora McKinney says they kept company in July, 1890; that afterwards he told her that he and prosecutrix were to-be married Christmas. Several other witnesses testified to the fact that these parties kept company together, and to other facts showing that they acted as lovers usually do. It is clearly established by the testimony, other than that of the prosecutrix, that the parties were suitors and under repeated decisions of this court the facts established are sufficient in corroboration. State v. Curran, 51 Iowa, 112; State v. Bell, 79 Iowa, 117; State v. McClintic, 73 Iowa, 663; State v. Smith, 84 Iowa, 522.

III. It is said that the verdict is not supported by the evidence. In view of a new trial, we can not discuss the weight and sufficiency of the evidence.

IV. The defendant sought to show by one Alice Lowe, a witness, that in January, 1891, the prosecutrix visited her house in company with a man who introduced the prosecutrix to the witness as his wife. This evidence was excluded. The evidence should have been admitted. If the prosecutrix was, during the time the defendant was going with her, and even .after she claims her child was begotten, keeping company with another man and permitting him to introduce her as his wife, it would certainly tend to weaken her claim that the defendant had promised to marry her. State v. Brown, 86 Iowa, 121.

We discover no error in giving and refusing instructions. For the errors heretofore stated, the judgment must be eeveesed.  