State v. Brown

159 P. 545, 48 Utah 279, 1916 Utah LEXIS 28

• Court: Utah Supreme Court
• Decided: July 13, 1916
• Docket: No. 2875
• Status: Published

Opinions

FRICK, J.

The defendant was convicted of the crime of having had carnal knowledge of a female under the age of eighteen years and over the age of thirteen years, which, under our statute, is a felony. He appeals from the judgment.

The first error assigned relates to statements made by the prosecutrix while testifying as a witness for the state. Though it were assumed that the statements were objectionable, yet, no objection or exception having been interposed or taken to the statements, the assignment is not reviewable by us.

At the trial the prosecutrix, a girl of about fourteen years of age, but apparently a well-developed female for that age, testified, among other things, that on the 25th day of January, 1915, she lived in defendant’s family, consisting of his wife and a daughter of about the age of the prosecutrix, near Garfield, Salt Lake county; that the defendant kept boarders who roomed and slept in small houses, or so-called shacks, which were located on the same lot and near defendant’s dwelling where he and his family lived; that on the day aforesaid a little after four o’clock in the afternoon, after the prosecutrix had returned from school, she went to one of the shacks, the one most distant from the dwelling house, in which there were two rooms in which the boarders roomed and slept in two beds;.that she went there to make up the beds and was alone in the shack when the defendant came in and that he then and there had sexual intercourse with her; that she was in the room from twenty minutes to half an hour and the defendant a somewhat shorter time. She also testified, without objection, that the defendant had had sexual intercourse with her on several occasions in the same shack prior to the date aforesaid. She, however, could not state the precise dates on which the prior acts occurred, but fixed them as nearly as she could remember. On cross-examination defendant’s counsel insisted that the witness, at the preliminary examination, had fixed at least some of the prior dates with certainty and that she at the trial was changing the dates fixed as aforesaid. The witness admitted that she, on the preliminary hearing, might have given a particular date, but. insisted that if she did she did not thereby mean that she could with certainty fix the date or dates on which the prior acts of sexual intercourse took place, and that she gave those dates as nearly as she could remember them. We have carefully read all of the evidence which is preserved in the bill of exceptions, and we feel bound to state that the discrepancies in the testimony of the prosecutrix with respect to times and dates are less than usual in such cases, and that she seemed quite fair in her statements and gave both the state and the defendant her best recollection with regard to the matters she testified to, and especially with regard to the different dates upon which the alleged prior acts of intercourse took place. The act upon which the complaint was predicated she always gave as having occurred on the 25th of January, 1915, and there is no contention to the contrary.

In view of the foregoing statements counsel for the defendant, at tbe trial, contended, and now insists, that the prosecutrix had made contradictory statements respecting material facts in issue and for that reason they requested the court to charge the jury as follows:

“No. 6. I charge you that a witness may be impeached by proof of contradictory statements; and, if you believe that any witness has been successfully impeached, why, then it would be your duty to disregard the evidence of such witness ; but it is for you to say whether or not you will believe the witness sought to be impeached or the witness brought to impeach him, the credibility of all witnesses being for you and your consideration. If you believe that any witness has been successfully impeached in reference to contradictory statements upon some material issue in the case — and it must be some material issue in the case — then you would not be authorized to believe him, unless you find that he has been corroborated. He may be corroborated, or he may be sustained by proof of good character, or by other facts and circumstances in the casé.”

The court refused to give the request and the refusal is assigned as error. \

The Attorney General insists, however: (1) That the statements of the prosecutrix are not of that character which would authorize the giving of the foregoing request; and (2) even though it were conceded that the statements were of that character, yet the request was improper, and hence the court committed no error in refusing it.

When all of the testimony of the prosecutrix is considered, as it must be, it must be conceded that there is little, if anything, upon which to base the contention that the statements are contradictory in the sense that that term is usually applied. Assuming, however, that the contention is well founded, the question still remains whether the court erred in refusing to give the request. The request seems to have been taken from the case of Powell v. State, 101 Ga. 19, 29 S. E. 309, 65 Am. St. Rep. 277. It was there held that the trial court committed no error in charging the jury in the language of the request. The Supreme Court of Georgia, however, arrived at such conclusion after a somewhat lengthy review of the Georgia decisions and after a somewhat exhaustive analysis of the instruction. The court accordingly held that while it would be error to instruct the jury that they must not consider the testimony of a witness who, it is shown, has made conflicting statements upon material issues, and that the jury must be left at liberty to give his testimony such weight,as in their judgment, upon the whole evidence, it is entitled to, or to disregard it in whole or in part, as in their judgment would be just and right, yet, that the charge in question, when properly construed, was merely to that effect. While a trained lawyer might be able to arrive at such a conclusion after carefully reading the instruction in the light of his experience as a lawyer, and in view of his knowledge of the law, yet it seems to us that the obvious and ordinary meaning of the language as it would likely be applied by laymen is not what the court found it to be. It is true that it is said in the charge that it is for the jury “to say whether or not you will believe the witness sought to be impeached or the witness brought to impeach him, the credibility of all witnesses being for you and your consideration,” yet it is also said, “If you believe that any witness has been successfully impeached, why, then it would be your duty to disregard the evidence of such witness. ’ ’ The instruction then concludes with the statement that if the jury “believe that any witness has been successfully impeached in reference to contradictory statements, * * * then you would not be authorized to believe him, unless you find that he has been corroborated. ’ ’ The jury is thus clearly told that in case a witness is impeached it is their duty to disregard Ms evidence, and, further, if they so find they would not be authorized to believe him, unless corroborated. As we view it, the average layman or juror would construe and apply the language of the instruction thus:

“While I am at liberty to believe either one of the witnesses, if, however, I do believe the witness who testified to the making of the contradictory statements, then it is my duty to disregard the testimony of the witness who made them unless such witness is corroborated by other credible evidence.”

We can see no escape from such a conclusion. The cases are quite numerous in wMch it is held that to charge a jury that it is their duty to disregard the testimony of a witness who, it is shown, has made contradictory statements, or who has been otherwise impeached, upon material issues, or to tell them that they cannot consider any of his testimony unless corroborated, constitutes error. In 2 Thompson on Trials (2d-Ed.) Sec. 2426, the subject is thoroughly discussed and the author there lays down the doctrine we have just stated. To the same effect are Green v. Cochran, 43 Iowa 545-553; Harper v. State, 101 Ind. 109; Addison v. State, 48 Ala. 478 ; Higgins v. Wren, 79 Minn. 462, 82 N. W. 859. Moreover, upon both reason and principle such must be the law. It is elementary that the credibility of the witnesses and the weight to be given to their testimony is the exclusive province of the jury. This applies to all the witnesses and not only to those against whose statements no objection is made. ' It would be almost revolutionary to hold as a matter of law that because some witness comes into court and testifies that another witness has made statements in conflict with his present testimony therefore all that the latter witness testified to should be disregarded by the .jury. To so hold would be in direct conflict with the doctrine that the credibility of the witnesses and the weight to be given to their testimony and statements is the exclusive province of the jury. The most that courts can do, or ought to do, in that regard, is to give the jury some plain directions to guide them in arriving at a just result. That is best accomplished by admonishing them that if they find that any witness ^as, upon any material issue, made statements, either in court proceedings or otherwise, which are in conflict with his present testimony, or if they believe that any witness has willfully testified falsely upon any material issue, that in either event they are at liberty to disregard any part or the whole of his testimony except in so far as the witness may b,e corroborated by other credible evidence.

In connection with the subject now under consideration it may not be improper to observe that it is not every discrepancy in time or dates that is necessarily a contradiction or constitutes a conflicting statement. Much must be left to the good judgment of the jury in that regard. As is well stated by the author in 1 Bishop’s New Crim. Proc., Sec. 1064:

“Honest witnesses oftener mistake dates, the time of the day, and the identity of people seen, than the average of other things to which they testify. ’ ’

The truth of the foregoing statement is amply vindicated in this case by the following incident: A young woman, a witness for the defendant, who, from a perusal of her testimony, seemed quite intelligent and fair in her statements, but very positive and firm, testified in chief that a certain event occurred on Monday the 28th day of a certain month, and on cross-examination she gave some special reasons why she knew the event occurred on a Monday and on the 28th day of the month. She was utterly surprised and confused, however, when the prosecuting attorney produced a calendar from which it conclusively was made to appear that the event could not have occurred upon both a Monday and on the 28th day of the month, since the 28th day of the month fell upon a Friday. The witness frankly conceded her error, but still insisted that the event occurred on the 28th day of. the month. After a careful reading of the record it is not easy to say to what extent this little incident may have affected the result in this case. It clearly illustrates, however, that it would be most unfair and unjust to hold as a matter of law that all such discrepancies in the statements of witnesses would destroy or seriously affect their testimony; and, further, that with regard to such matters they all should be left to the jury under proper precautionary instructions.

In this case the testimony of the prosecutrix and that of the defendant relating to the sexual intercourse were in direct conflict. She, in emphatic terms, stated that he had sexual intercourse with her on the 25th day of January, 1915, and he as emphatically stated that he, neither on that day nor at any other time, had had sexual intercourse with her. It follows, as a matter of course, therefore, that either the defendant or the prosecutrix testified falsely. They could not be mistaken with regard to the fact of sexual intercourse. In view of that the court instructed the jury that if they “shall believe any witness has willfully testified falsely as to any material fact in the case you are at liberty to disregard the whole testimony of such witness” unless corroborated. In addition to that the court explicitly and fully instructed the jury that it was their exclusive province to determine what witnesses they would believe or what weight they would give to their testimony, stating the rule in that regard for their guidance.' We think that in view of all the facts and circumstances in this case the charge was sufficient, and was as favorable to the defendant as he was entitled to have it. It follows, therefore, that the things which it was proper to include in the precautionary instruction, such as the defendant’s counsel requested, were substantially covered in the court’s general charge to the jury. In view of the conflict between the prosecutrix and the defendant it was a question exclusively for the jury. Her testimony is sufficient if believed. State v. Bayes, 47 Utah 474, 155 Pac. 335.

The defendant, however, offered two other requests which covered practically the same ground as request No. 6 in different language, and it is urged that the court erred in refusing those two requests. What we have already said practically covers those two requests. We remark, however, that while it would not have been improper to give defendant’s request No. 7, yet, as before stated, it was substantially covered by the court in its general charge, and for that reason no error was committed in refusing it.

The last one of the requests, numbered 8, was properly refused both because it was substantially covered in the court’s charge, and because, like request No. 6, it contained some improper matter.

Error is also assigned upon the following- instruction given by the court:

“Circumstances of suspicion, if they amount to no more than that, or a preponderance merely of evidence against a defendant, is not sufficient to warrant a conviction. The weight of the evidence must be such as to remove from the minds of the jury all reasonable doubt of the defendant’s guilt in order to warrant a conviction.”

The second or last sentence of the instruction, it is insisted, constituted prejudicial error for the reason, as counsel ex-présses it, that:

‘ ‘ The court thereby tells the jury that all reasonable doubt of the defendant’s guilt must be removed from their minds by the weight of the evidence before they can convict him. This instruction is so clearly wrong as not to require further comment. Weight of evidence means preponderance of evidence ; that is, if the doubt is removed by the preponderance of the evidence, the jury may convict.”

That is all counsel offer upon the subject. We do not think that counsel’s construction is the natural and ordinary effect of the language used by the court. Moreover, the court had, in the preceding instructions, already three times told the jury in explicit terms that they could not find the defendant guilty unless they found his’ guilt established beyond a reasonable doubt. Again, the court, in subsequent instructions, repeated that precaution at least three times. The jury were thus fully informed that it was not merely a preponderance of the evidence upon which they could base a finding of guilty, but they must be satisfied beyond a reasonable doubt of the defendant’s guilt before they could convict him. That fact was made so plain and so prominent by the frequent repetitions in the charge that we cannot see how the jury could have been misled by what the court said in the sentence criticized by counsel. It is elementary that instructions can neither be upheld nor condemned by what may be said in one sentence. In the instruction itself, however, the jury were again told that “all reasonable doubt” must be removed from their minds before they could convict the defendant, and that a mere preponderance of the evidence “is not sufficient to warrant a conviction. ’ ’ That such doubt must be removed, as the court seems to say, by “the weight of the evidence” could, in view of the whole charge, not have had the effect contended for by counsel; nor could it have misled the jury.

It is also insisted that the court erred in refusing to grant a new trial upon the ground of alleged newly discovered evidence. The state insists, however, that the affidavit in support of the motion for a new trial is insufficient in that it fails to disclose the facts constituting defendant’s diligence or to disclose what actions he took to procure the alleged newly discovered evidence to be used at the trial. The authorities are to the effect that merely to state that the party making the application exercised due diligence, or words to that effect, merely states a conclusion and renders the affidavit fatally defective. Spelling New Tr., etc., Sec. 218; Thompson on Trials (2d Ed.), Sec. 2762; Bradley v. Norris, 67 Minn. 48, 69 N. W. 624, and cases there cited. The affidavit in this case is merely in the form of a conclusion. Assuming, however, for the purposes of this decision, that the affidavit is sufficient, yet we are of the opinion that the court committed no error for the reason that a part of the alleged newly discovered evidence is what is termed impeaching evidence and the remainder is merely cumulative. It could subserve no good purpose to set forth the alleged newly discovered evidence. It must suffice to say that the defendant produced the affidavits of five persons of lawful age who testified that the general reputation of the prosecutrix for truth and veracity is bad, and that they would not believe her under oath. Another witness, a woman, made affidavit that if a new trial were granted she would testify that she was present at the home of the defendant on the afternoon of January 25, 1915, and there saw the prosecu-trix and the defendant. She also details in her affidavit such facts as would make it improbable or unlikely, but not impossible, that the sexual intercourse testified to by the prose-cutrix between her and the defendant took place. Substantially the same facts detailed by this witness were, however, testified to by the defendant, by his wife, by their daughter, and by another lady visitor, all' of whom were at the defendant’s home on the afternoon of January 25, 1915, and at the time it is alleged the charged intercourse took place. The testimony of the witness was therefore merely cumulative. That is, a mere repetition of what the other four witnesses had testified to, while that of the five persons was clearly impeaching and nothing more. The authorities are very numerous, and practically unanimous, that it is only in exceptional cases, of which the instant case is not one, that new trials will be granted for alleged newly discovered evidence which is merely impeaching or cumulative, or both. This eourt is firmly committed to that doctrine, as appears from the following cases: Klopenstine v. Hays, 20 Utah 46, 57 Pac. 712; State v. Molitz, 40 Utah 447, 122 Pac. 86; State v. Montgomery, 37 Utah 515, 109 Pac. 815; State v. Moore, 41 Utah 247, 126 Pac. 322, Ann. Cas. 1915C, 976. To the same effect are Harper v. State, 101 Ind. 109; Rains v. Ballow, 54 Ind. 79; Dodds v. Vannoy, 61 Ind. 89; Arwood v. State, 59 Ga. 391; McDonald v. Coryell, 134 Ind. 493, 34 N. E. 7. In the Georgia case there was but one witness for the state, and it was that witness that the newly discovered evidence sought to impeach. Notwithstanding that the court held that a new trial should not be granted. In this case there are, however, some facts in the record which would make the impeaching evidence less effective than in that case. The foregoing cases make it clear that if all that defendant’s counsel contend for in their motion for a new trial be conceded, yet, under the overwhelming weight of authority, we are not authorized to grant a new trial. It is, however, clearly made to appear from the testF mony of both the defendant and his wife, and possibly other witnesses, which was received without objection, that the prosecutrix was a dutiful, reliable, and obedient girl, and that they knew nothing derogatory to her character and had heard nothing against her until after the present charge was preferred.

In conclusion the writer feels constrained to say that after a careful reading of the whole evidence and proceedings, and judging alone from the face of the record, if he had been a juror he would have found the defendant not guilty. The jury were, however, in a much better position to judge of the real merits of the case than is he; Again, I desire to concede that, judging alone from the face of the record, including the proceedings in support of the motion for a new trial, if I had been the trial judge I should have felt inclined to grant the motion for a new trial. Here again the trial judge was in a much better situation to judge than I am, and in view that there is no substantial legal error shown which, in my judgment, affected any of the substantial rights of the defendant we, as an appellate court, have no authority-, to interfere with the verdict of the jury or the judgment of the court based thereon.

Since writing the foregoing my Associates, in separate opinions, have given their reasons for arriving at a conclusion different from mine. After again carefully considering the whole record I am still unable to yield my former judgment. Aftér all, whether the trial court committed reversible error or not in refusing to charge as requested, in my judgment, depends wholly upon how one regards the weight or probative force of the evidence. I say this because in this case there is positive and direct evidence in support of as well as against the finding of the jury. The contradictory statements of the prosecutrix were fully explained by her and all the circumstances why and how she made them were before the jury and they were fully advised with respect thereto. The prose-cutrix either told the truth at the trial or she did not. Whether she did or did not had to be determined from all that occurred at the trial. The question, therefore, was one peculiarly for the jury. It is impossible in an opinion to reflect all that occurs at a trial which might influence the judgment of the. triers of fact upon questions of fact. The circumstances may be such that one witness is, and ought to be, believed, notwithstanding he has made contradictory statements which are satisfactorily explained to the jury, as against another witness who has made no conflicting statements. No doubt, under ordinary circumstances, the credibility of a witness is affected in case” he has made contradictory or conflicting statements. This, however, is a matter of such general knowledge that even school boys who have attained the age of ten years are fully aware of it and constantly apply it in their daily conduct and intercourse with their playmates and associates. Let one of them, make contradictory statements concerning a fact and his statements will at once be discounted by his playmates. This, too, without any instruction or admonition from any one. Yet when those same school boys become business men and their knowledge and experience have increased, then it is solemnly assumed that they no longer are capable of weighing the testimony of a witness who has made conflicting statements without an instruction from a court. I freely concede that such instructions have many times been given and have as often been approved by the courts, and that judgments have even been reversed because they were refused; but to do so under all the circumstances in the ease, in my judgment, constitutes an unwarranted interference with the verdict of the jury for the reason that in effect it is but another way of saying that the jury, upon the evidence, should have found contrary to what they did find. I desire to add, however, that while such precautionary instructions can do no harm, they, in my judgment, have not the slightest effect upon the average juror. When, however, as here, there is direct and positive evidence in support of the jury’s finding and the parties have been given every latitude and opportunity to lay before the jury all the facts and circumstances concerning the alleged offense, and having also fully explained to the jury the relationship of the witnesses and their statements and conduct preceding the trial, I cannot see how either the giving or withholding of such an instruction could influence the jury or affect their verdict. I am of the opinion, therefore, that the judgment should prevail. In view, however, that my associates are of a different opinion the judgment is reversed and the cause is remanded to the district court of Salt Lake county, with directions to grant a new trial.