State v. Ferrand

27 So. 2d 174, 210 La. 394, 167 A.L.R. 559, 1946 La. LEXIS 800

• Court: Supreme Court of Louisiana
• Decided: February 11, 1946
• Docket: No. 37934.
• Status: Published

Opinions

The defendant, Victor Ferrand, was tried on a charge of aggravated rape and is appealing from his conviction by the jury of attempted aggravated rape and his sentence thereunder to serve three years at hard labor, relying for the reversal thereof on the single alleged error committed during the trial of the case, i.e., the action of the trial judge in overruling his objection (that was based on the fact that he was only prepared to defend himself on the charge of having committed the offense on September 12, 1944, the date alleged in the indictment) to the testimony of the prosecuting witness with reference to the commission of a similar offense on September 4, 1944.

"The general rule excluding evidence that accused committed other offenses is subject to a number of exceptions, as where such evidence tends directly or fairly to prove his guilt of the crime charged, or to connect him with it, or to rebut the defensive theory or a special defense, or to establish the absence of mistake or accident, or where the crime charged and the other offense are closely related or connected; and evidence otherwise competent to establish accused's guilt of the crime charged is not inadmissible because it incidentally tends to prove him guilty of another crime." 22 C.J.S., Criminal Law, § 683, p. 1089. The rule should be very strictly enforced and should never be departed from unless the evidence falls under one of these exceptions and thus clearly justifies such a departure. 16 C.J. 587, Section 1133.

The trial judge said in his reasons for overruling the defendant's objection to the admission of the evidence that he permitted it because "the State has a right to show, if it can, the probability or improbability of the prosecuting witness' story, and also for the purpose of corroborating her testimony."

The evidence was clearly inadmissible in this case. The mere statement by the prosecuting witness that she was first raped by the accused on September 4 certainly does not prove the offense allegedly committed on September 12 and such evidence is therefore immaterial and irrelevant to the issue in the case. Inasmuch as there was no other issue present in the case that would make the evidence objected to material or relevant, it was inadmissible in this case because from the very nature of the crime its commission carried with it the elements of guilty knowledge, intent, and motive, and negatived the possibility that it was committed through inadvertence. See 16 C.J. 588, Sections 1134, 1135, 1136, 1137, 1138, 1139, and 1140; 22 C.J.S., Criminal Law, §§ 683-688; State v. Cupit, 189 La. 509, 179 So. 837.

While under the provisions of Article 557 of the Code of Criminal Procedure the verdict of a jury should never be set aside for the improper admission or rejection of evidence "unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right," we feel that because people generally are prone to view the crime of rape with great revulsion and prejudice, the probability that an added prejudice has resulted by permitting evidence of another such incident that is entirely independent of the one charged is so great that a miscarriage of justice might well be the result that we should never admit the evidence of the other crime in a case such as this unless such admission must be permitted under the above well-established exceptions to the general rule.

It is our opinion, therefore, that the refusal of the judge to sustain defendant's objection to the admission of evidence relative to the previous crime, although of a similar nature, was prejudicial to the constitutional rights of the accused guaranteeing him a fair trial.

The cases relied on by the state are not apposite to this holding for all of them deal with carnal knowledge, often referred to in other jurisdictions as statutory rape, or are cases where the elements of intent, motive, identity, or doubt as to the commission of a different crime than the one contemplated were at issue.

For the reasons assigned the conviction and sentence of the defendant are annulled and set aside and the case is remanded for a new trial, in accordance with law.