State v. Linebarger

232 P.2d 669, 71 Idaho 255, 1951 Ida. LEXIS 273

• Court: Idaho Supreme Court
• Decided: April 23, 1951
• Docket: 7613
• Status: Published

Opinions

TAYLOR, Justice.

The defendant was convicted of the crime of rape charged to have been committed against the person of a female who at the time was past the age of eighteen years. The information charges that the act was accomplished “forcibly and by threats of great and immediate 'bodily harm accompanied by the apparent power of execution and against the consent of” the prosecutrix, and that she “did then and there resist the accomplishment of said act of sexual intercourse but 'her resistance was then and there overcome by force and violence used upon and against” the pros-ecutrix.

The statute defining rape so far as pertinent here is as follows:

“Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances:

« * & *

«* * *

“3. Where she resists, hut her resistance is overcome by force or violence.

“4. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution; * * Sec. 18-6101, I.C.

The defendant demurred to the information, and moved the court to require the state to elect, upon the ground that the information charged two offenses, one under subsection 3, and the other under subsection 4, supra. The appellant assigns a9 error the overruling of the demurrer and the denial of the motion to elect. There is no merit in these assignments. The information charges but one offense. Sec. 19-1413, I.C. State v. McDermott, 52 Idaho 602, 17 P.2d 343; State v. Carlson, 53 Idaho 139, 22 P.2d 143; State v. Salhus, 68 Idaho 75, 189 P.2d 372; State v. Baldwin, 69 Idaho 459, 208 P.2d 161; State v. Ayres, 70 Idaho 18, 211 P.2d 142.

Appellant complains of the overruling of his objection to redirect examination of the prosecutrix on the ground that the subject matter of such examination was pot mentioned in the cross-examination. This redirect examination elicited testimony of the prosecutrix that, after the group had returned to Caldwell, she told her girl companion what had happened, and that upon arrival at her home in Nampa she went in and woke her mother and told her what had happened, and as to her own physical condition and the condition of her clothes, and that the next morning the clothes were delivered to' the sheriff. These facts were not gone into in her cross-examination. On cross-examination she was asked, “Did you say anything to these other boys and girls when you got back to the car?” She answered, “No, I didn’t say anything to them then, I was afraid to.” Some of the redirect examination was directed to the question of when and to whom she made complaint, which was thus referred to on the cross-examination. The rules governing the examination of witnesses are intended to protect the rights of litigants, and to secure orderly dispatch of the business of the courts, and should be observed. However, in their enforcement the court must not lose sight of the paramount objective of all trials, that is, to arrive at the truth and do justice. To this end the court must exercise a broad discretion in the application of such rules. We find no abuse of that discretion here. Secs. 9-1202, 9-1208, I.C. State v. Fox, 52 Idaho 474, 16 P.2d 663; 58 Am.Jur., Witnesses, Sec. 562; 70 C.J., Witnesses, sec. 862, p. 712.

Error is assigned in the admission in evidence of state’s exhibits “A” and “B”, photographs of the prosecutrix, taken the day following the' attack, introduced to show swollen and discolored eye, in corroboration of her testimony that defendant struck her. Exhibit “F”, being a photograph of the scene of the attack, was also objected to. These photographs were supported by testimony that they were correct representations of the objects portrayed, except that the sheriff testified that the discoloration about the prosecutrix’- eye did not show up in the photograph to the extent that it appeared to> one observing her at the time the photograph was taken. There was no error in the admission of these exhibits. Stokes v. Long, 52 Mont. 470, 159 P. 28; State v. Roberts, 28 Nev. 350, 82 P. 100; State v. Evans, 115 Kan. 538, 224 P. 492; State v. Jones, 48 Mont. 505, 139 P. 441; State v. Reding, 52 Idaho 260, 13 P.2d 253; 23 C.J.S., Criminal Law, § 852; Mow v. People, 31 Colo. 351, 72 P. 1069.

Exhibits “C”, “D” and “E” are photographs of the appellant taken at the sheriff’s office two days after the attack, and were introduced to show alleged scratches on his face, in corroboration of the prosecutrix’ testimony. The record does not show that the sheriff sought the prisoner’s permission to take these pictures, nor that he made any objection to’ being photographed. The sheriff testified that they were true likenesses of the defendant as he saw him on the day following the attack. Appellant contends that this evidence violates his constitutional immunity from self-incrimination by requiring him to give evidence against himself. This contention is without merit. Art. 1, sec. 13, Idaho Constitution. State v. Casey, 108 Or. 386, 213 P. 771, 217 P. 632; State v. Oschoa, 49 Nev. 194, 242 P. 582; Shaffer v. U. S., 24 App.D.C. 417; State v. McDermott, 52 Idaho 602, 17 P.2d 343; Rutherford v. State, 135 Tex.Cr.R. 530, 121 S.W.2d 342; People v. Ferns, 27 Cal.App. 285, 149 P. 802; State v. Clark, 156 Wash. 543, 287 P. 18; State v. Sedam, 62 Idaho 26, 107 P.2d 1065.

While the sheriff was testifying as a witness for the state, he was asked if he had had occasion to talk to the defendant. Then, in response to a question, injected by the defendant in support of an objection, as to whether the defendant at the time knew the witness was the sheriff, ■ he answered, “Yes, of course, he knew I was sheriff because of a previous investigation.” On continuation of the direct examination, the prosecutor inquired, “What kind of an investigation was that?” to which the sheriff answered, “Statutory rape.” The defense moved to strike the answer on the ground that attempt was being made to prove a “former alleged crime.” The motion was denied. On cross-examination of the defendant, the prosecuting attorney was allowed to inquire as to his previous marriage and divorce. Then the prosecutor asked if the sheriff had inquired about his •relations with the girl whom he had married. Upon objection being made by the defense, the prosecuting attorney having advised the court (in the absence of the jury) that he sought to inquire into an alleged previous offense, the court sustained the objection. While there is here an inference that the defendant had been investigated in connection with a previous offense, we find no such prejudicial error as would warrant a reversal.

During the course of the examination of witnesses, the trial judge made certain comments which are assigned as error. The first occurred during the direct examination of the prosecutrix. The defendant moved to strike an answer on the ground that it was not responsive. The court ruled, “It may be stricken, if you want to be technical.” The motion to strike was in a sense technical. The first part of the answer was direct and responsive and should not have been stricken. Defendant’s counsel was in error in not limiting his motion to that part of the answer which was not responsive. And, since the portion of the answer which was not responsive was merely preliminary, the motion should have been denied. The next remark was made near the close of the cross-examination of the prosecutrix. The state’s attorney made an objection on the ground of repetition. The court ruled, “She may answer. The court is giving you a lot of leeway on this cross-examination.” The state had made only one previous objection during; the course of cross-examination, and there-had been some repetition. Great latitude should be allowed in the cross-examination of witnesses and we do not think the cross-examination of the prosecu-trix in this case was overextended. The third remark was made during the cross-examination of the state’s witness, Dr. Dist-ler. Upon objection by the state on the ground of repetition, the court ruled, “Objection sustained. You are arguing with the witness.” The question referred to was a summation of the three previous questions which had already been answered. Hence, there was some justification for the remark. No objection was made at the trial as to either of these remarks. State v. Frank, 51 Idaho 21, 1 P.2d 181; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Behler, 65 Idaho 464, 146 P.2d 338. However, appellant urges the impracticability of the rule requiring that objection be made to such' remarks at the trial, involving as it does the risk of further prejudicing the client’s cause by incurring or increasing the ire of the judge by making such objections. Counsel further urges that it is difficult to make a showing, before the appellate court, which will reflect the exact manner, facial expression, and intonation, of the trial judge at the time of making such remarks, which characterizes them as expressions of the feelings or prejudices of the judge towards the complaining litigant. These contentions are fraught with considerable merit. It is because of the susceptibility of the average juror to the opinions and prejudices of the trial judge, that the rule was established that the judge “should make no remarks or comments that would tend to- prejudice either of the parties litigant on the trial.” State v. Miller, 60 Idaho 79, 88 P.2d 526, 527. We cannot too strongly condemn, in any trial judge, conduct or remarks during the course of a trial which are unprovoked and unnecessary to the orderly conduct of the trial, and which indicate to the jury the personal prejudices and opinions of the judge. However, in this case, while the remarks appear to be unnecessary to the orderly conduct of the trial, they were toi a limited extent justified by the immediate circumstances. No attempt is made to' show that the manner of the judge in making the remarks was prejudicial. And since the remarks themselves are not necessarily prejudicial, we cannot assume that actual prejudice resulted.

Appellant assigns the refusal of the court to give his requested instructions Nos. 8 and 10. No. 8 is a statement of what would constitute resistance and what would constitute consent on the part of the female in such a case. Instruction No. 6, given by the court, covered the essential elements of the crime as charged in the information and No. 7 fully covered the definition of resistance and consent. Hence, there was no.error in refusing to give the requested instruction No. 8. Appellant’s requested No. 10 would have advised the jury to acquit the defendant. There was no error in its refusal.

Appellant urges that the prosecutrix was an accomplice and that, therefore, her testimony must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Sec. 19-2117,1.C. In support of this proposition we are cited to State v. Sims, 35 Idaho 505, 206 P. 1045; and State v. Shelton, 46 Idaho 423, 267 P. 950. These are adultery cases and have no application here. In a case of rape by force, if we should consider that consent would make the prosecutrix an accomplice, it is clear that such consent would also negative the charge of rape. Therefore, if the evidence is sufficient to sustain the conviction it necessarily means that the prosecutrix did not consent, was not an accomplice, and the statute would have no application. In State v. Elsen, 68 Idaho 50, 187 P.2d 976, 978, Mr. Justice Hyatt traced the history of the rule as to corroboration required in a rape case, and made a concise statement of the rule as it has developed in this state, to-wit: “If the character or reputation of the prosecutrix for truth and chastity is unimpeached, and her testimony is not contradictory nor inconsistent with the admitted facts of the case, and is not inherently improbable nor incredible, there can be either direct evidence corroborating her testimony, or evidence of surrounding circumstances clearly corroborating her statements. Either will suffice. If, however, her character or reputation for truth and chastity, or either, is impeached, or her testimony is contradictory or is inconsistent with the admitted facts of the case, or is inherently improbable or incredible, then there must be direct evidence corroborating her testimony.”

In this case the appellant on the witness stand freely admitted that he accomplished an act of sexual intercourse with the prose-cutrix. His defense is that she consented and joined in the act. He testified that the prosecutrix told him she had had intercourse before, and one of the defense witnesses, a high school girl who said she was a friend of the defendant’s and had gone out with him, testified that the prosecutrix’ general reputation was not good. Whether the general reputation referred to was for chastity or truth does not appear from the record. The prosecutrix denied the statement attributed to her by the defendant. This is all of the evidence tending to impeach her. On the other hand the bloodstained panties and slip which she wore at the time were received in evidence. The doctor who made a vaginal examination of her the next day after the attack testified that he found fresh blood in the vagina, that the hymen had been perforated, and that in his opinion it had been ruptured within a period of twenty-four hours prior to his examination. He further testified that she was not menstruating at the time. The F.B.I. chemist who examined the articles of clothing testified that the bloodstains were of human blood. Such evidence is quite a conclusive refutation of the imputation of unchastity. It is urged that her conduct in walking back to the car from the canal bank, where the attack occurred, with the defendant, entering and riding with him back to Caldwell, without making complaint to the other couple who were in the back seat of the car, or otherwise indicating to them that she was angry or agitated, is inconsistent with her testimony that she resisted the defendant’s em- ' brace and submitted thereto only because of his use of force and threats of further bodily injury. As heretofore stated, she did make complaint to the other girl in the party as soon as the two boys left the car after arriving in Caldwell, and that she and the other girl immediately hailed a taxicab and returned by that means to their homes in Nampa, where she, upon her arrival, awakened and told her mother of the attack. As to her conduct in leaving the car and going through the ’ field with the defendant to the canal bank, her testimony is that the entire group was looking for a place known as the “Low Line” where she understood there was dancing, and that he had told her it was “over there” through the field. This is to an extent corroborated by the other members of the party, who testified that they had stopped another car to enquire where the “Low Line” might be found. Even if such evidence were taken to indicate that she was willing to engage in “necking” or “petting”, that would not justify a sexual assault upon her, nor render her statement that she resisted and did not consent, so improbable as to require direct corroboration. The doctor testified to bruises over her left eye and over her left ear, bruises and minor lacerations of her right ear and scalp and bruises on her arms and right thigh. This was corroborated in various particulars by her stepfather, the other girl, the sheriff, and by her mother. The latter also testified that when she came home she was crying, nervous and upset and had mud on her face and that her blouse and skirt were dirty and grass-stained. We think the evidence fully sustains the verdict. State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; State v. Black, 36 Idaho 27, 208 P. 851; State v. Leavitt, 44 Idaho 739, 260 P. 164; State v. Smith, 46 Idaho 8, 265 P. 666; State v. Alvord, 47 Idaho 162, 272 P. 1010; State v. Vail, 47 Idaho 354, 275 P. 578; State v. Thomas, 47 Idaho 760, 278 P. 773; State v. Haskins, 49 Idaho 384, 289 P. 609; State v. Flitton, 52 Idaho 374, 15 P.2d 397; State v. Gailey, 69 Idaho 146, 204 P.2d 254; Sutton v. People, 145 Ill. 279, 34 N.E. 420.

Appellant also assigns as error the denial of his motion for a new trial. In addition to grounds already covered by this opinion, the motion was based upon newly discovered evidence, and is supported by an affidavit in which the deponent says she had been told that the prosecutrix had engaged in an act of sexual intercourse on a previous occasion. This, of course, is clearly hearsay and could not support the motion.

The judgment pronounced by the court was for imprisonment in the state penitentiary for the term of not more than twenty years. It is urged this is excessive. The statute provides “Rape is punishable by imprisonment in the state prison not less than one year, and the imprisonment may be extended to life in the discretion of the District Judge, * * § 18-6104, I.C. It is apparent from what we have said that the facts of this case are not attended by such circumstances of aggravation as have attended other cases. We are constrained to hold that the trial judge abused his discretion and the judgment should be reduced, and it is accordingly reduced to not more than five years. State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; State v. Powell, 71 Idaho 131, 227 P.2d 582.

The judgment of conviction so modified is affirmed.

GIVENS, C. J., and PORTER, J., concur.