State v. Martinez

326 P.2d 102, 7 Utah 2d 387, 1958 Utah LEXIS 160

• Court: Utah Supreme Court
• Decided: May 29, 1958
• Docket: 8796
• Status: Published

Opinions

HENRIOD, Justice.

Appeal from 3 rape convictions. Reversed, and remanded for a new trial.

Two of the defendants were 16. The third, and the prosecutrix were 17.

All of the defendants admitted an attempt at or the accomplishment of sexual intercourse with the prosecutrix, whom they had picked up and with whom they had spent the night, either riding around or remaining in a parked car.

Defendants urge that the court erred in 1) admitting evidence that the defendants had been inmates of the State School, 2) by inviting the jurors to question witnesses, which in turn resulted in their inordinate and unwarranted examination; by 3) inviting the jurors, even after they had retired to deliberate, to summon and quiz a witness called neither by prosecution nor defense, and by 4) admitting conversations between prosecutrix and a friend after the alleged offense was commited. Other errors assigned are deemed unnecessary to discuss.

As to 1): About 3 pages of the record are devoted to the questioning of one of the defendants as to his having been an inmate of the State School,¹ how long he had been an inmate there, when he was released, if he had been in the school at the same time as the other defendants, and as to the closeness of his relationship with them. The questions were pointed, pressing and repeated, over objection. We are convinced that such line of questioning could have accomplished nothing save an instillation in the veniremen’s minds that here was a worthless lot, and that such questions and answers had no probative value in the establishment of the offense charged here. It was a line akin to that which would attempt to prove previous offenses having no connection or probative value in the establishment of the commission of a later offense, — a procedure which this court has refused to sanction.²

As to 2) and 3) : It appears that time and again the trial court invited and encouraged the jurors to ask the witnesses questions, even inviting them, after retiring to deliberate, to question a witness who had not been called by either prosecution or defense, resulting in an indiscriminate posing of more than 50 questions to such witnesses by various jurors. Under such circumstances, involving such protracted questioning by laymen, where counsel dare not object lest they invoke the displeasure of the inquisitorial jurors, we believe and hold that not only prejudice was engendered but that the trial court exceeded the bounds of discretion which circumscribe him in such cases.

We have approved the principle that, within sound discretion, the trial court might permit jurors to ask an unsolicited question,³ but at the same time we sounded a warning against any excesses in the application of such principle, and indicated it should be permitted only as a rarity, when we said, through Mr. Justice Wade that:

“By so holding, this court does not wish it to he understood that it approves the practice of a trial court inviting furors to ask questions. This privilege, should only be granted when in the sound discretion of the court it appears that it will aid a juror in understanding some material issue involved in the case and ordinarily when some furor has indicated that he wishes such a point clarified.” (Our emphasis.)

In a concurring but not controlling opinion, Justices Larson and Turner would have narrowed the juror’s privilege even further when, through Mr. Justice Larson, they said:

“I wish to emphasize that while it is proper to permit the juror to ask questions of a witness to clarify some matter in the mind of the juror, the court should never on its own motion invite the jury to question witnesses, and should at all times guard carefully the rights of the parties in permitting the witness to answer questions asked by a juror.”

As to 4): We believe the conversation of the prosecutrix with a friend within hours after she had arrived home, as related by such friend, was so lacking in details that its admission did not violate the rule heretofore enunciated by this court to the effect that where a woman allegedly has been unlawfully violated sexually, any statement made by her within a reasonably short time thereafter, is admissible if, without recitation of the details, it refers to the commission of the offense, such statement being a spontaneous utterance whose very spontaneity together with a characteristic, natural feminine inclination to express an outraged feeling under such circumstances, guarantees its trustworthiness.⁴

McDonough, c. j., and wade, j., concur.

1 . This case was tried in Ogden City, Weber County, where the State School is located. It is reasonable to assume that the jurors knew the State School was what is commonly known as the Industrial or Reform School where incorrigible or criminal minors are detained.

2 . State v. Wellard, 1955, 3 Utah 2d 129, 279 P.2d 914.

3 . State v. Anderson, 1945, 108 Utah 130, 158 P.2d 127, 128, 159 A.L.R. 340.

4 . State v. Christensen, 1929, 73 Utah 575, 276 P. 163.