State v. Mackey

• Decision Date: 23 June 1915
• Parties: STATE v. MACKEY.
• Court: North Dakota Supreme Court

31 N.D. 200

153 N.W. 982

STATE

v.MACKEY.

Supreme Court of North Dakota.

June 23, 1915.

Syllabus by the Court.

Defendant appeals from conviction for statutory rape. Fifty-seven assignments of error appear, but only enough thereof are discussed to entirely destroy plaintiff's case.

The testimony of prosecutrix's teacher, the principal of the school, and a lady member of the school board as to statements made to them by prosecutrix during a private investigation, was improperly admitted upon the trial. Such statements were not voluntary, and, not being under oath, were hearsay.

The only remaining testimony properly admitted was given by the prosecutrix. She was so weak-minded that she had no memory of dates nor conception of time. Her testimony in many material particulars is contradicted by the state's own witnesses, and is so unreasonable that it cannot support a conviction.

Other errors, while not necessary to a disposition of the case, set forth in explanation of the action of the jury in convicting the defendant.

Appeal from District Court, Barnes County; Coffey, Judge.

Oliver Mackey was convicted of rape of a female under age, and he appeals. Reversed.A. P. Paulson, of Valley City, for appellant. M. J. Englert, State's Atty., and H. A. Olsberg, Asst. State's Atty., both of Valley City, for the State.

BURKE, J.

Defendant appeals from conviction for statutory rape. There are 57 assignmentsof error, but we will discuss only those assignments which in our opinion result in the total destruction of the state's evidence and necessitate a dismissal of the action. The facts will appear more fully in the opinion. For the purposes of this statement, it suffices to say that defendant is a married man living with his family and engaged in the plumbing and boiler-making business at Valley City, where he has resided for more than 30 years. At the time of his arrest he was over 56 years of age and was serving as an alderman of that city. The complaining witness, Bertha Bonen, was 12 years of age at the time of the alleged offense and is concededly very backward in mental development. Respondent describes her as follows:

“Her mind was so lacking in intelligence that she could only give physical facts. The girl, though of more than average size physically for a girl of her age, had the mind of a child of about six, seven, or eight years old. It was a literal impossibility for her to fix any dates.”

The trial court in his memorandum opinion says:

“(She is) rather large, with a mind of a child four or five years of age in certain respects, advanced to the third grade in her studies.”

During the year 1913, she attended the Valley City public schools. About the last of October her teacher took from her possession a note of such indecent nature that it was referred to the principal of the school, who summoned the prosecutrix and examined her as to her moral conduct. As a result of this investigation, prosecutrix admitted immoral relations with several young boys, to one of whom the note was addressed, but she did not mention defendant. A series of investigations by a member of the school board, the principal of the school, and the teacher, followed, whereat the prosecutrix in response to questions implicated defendant and another business man of Valley City. Arrests followed resulting in the conviction of defendant and the acquittal of the other business man, who, however, was tried before another judge and in a different county. Upon this appeal defendant seeks to destroy all of the evidence offered by the state, which consists, by the way, entirely of statements by the prosecutrix upon the trial and her statements to the teacher and school board above mentioned. It is contended that the testimony of the prosecutrix is so self-impeached and impossible of belief that the court should have advised the jury to return a verdict of not guilty.

[1] 1. Before taking up the question of the sufficiency of the evidence, we will discuss a few assignments of error, which dispose of the testimony of all witnesses, except the prosecutrix. As already intimated, prosecutrix was given a severe examination by the teacher, the principal, and the lady member of the school board. This investigation of itself was entirely proper and well within the duties of the three ladies who conducted the same, whose motives were the highest. They performed a duty they owed to the child, the school, and the community, and are entitled to the highest praise. Whether or not they should have been allowed to narrate the unsworn statements made to them by the girl is an entirely different question. Prosecutrix's teacher says that at these meetings prosecutrix was requested to come, and did not come voluntarily; that all of the statements made by her were in response to questions. The principal says that there had been four meetings with the prosecutrix. She testifies in response to questions:

“Q. She was put through a pretty fair system of cross-examination, was she not? A. No, it was not. Questions put in a general way. Q. Inquired as to who the different parties were, etc.? A. Yes. Q. Did you suggest any of these? A. No. Q. Did you not tell her it was better for her to tell everything as it was, not to keep back anything at any one of the meetings? A. There may have been something said to that effect, just simply telling her it was always better to take the truth. She talked quite freely. She simply added a few more names, is all, at the second meeting. Q. But the third time? A. She added this one other name.”

The defendant's was the name added at the third meeting. Mrs. W., the member of the school board, testifies:

“A. The answers were in response to questions. She did not appear before us at the meeting under any suggestions coming from her and indicating to us that she wanted to discuss the subject with us. She came in response to our request. We asked her questions.”

All of those witnesses were allowed to testify that prosecutrix at the third meeting, and in response to questions, stated to them that she had sexual intercourse with the defendant five times; the last time being November 8th. The evidence was offered as corroboration of the girl's testimony and for the purpose of fixing the date of the last act of intercourse. It is apparent that the statement of the prosecutrix to these persons was not spontaneous, nor voluntary, but in fact made only after repeated questionings, and was in no sense part of the res gestæ. It is apparent that the teachers and school board were making repeated and thorough investigations and using considerable moral force upon the girl to arrive at the bottom of the whole affair. The statement was made more than a year after the first act of intercourse and at least six days after the last, claimed by the state and at the third meeting at least of such investigation. If the statements were admissible at all, it was not as original evidence, but for the purpose of corroboration. The reason for this exception to the general hearsay rule is that the outraged female is prompted by instinct to make known her wrongs and to seek sympathy and assistance. When given spontaneously and promptly, her unsworn statements are received in evidence with the same force as though given under the sanctity of an oath. In State v. Werner, 16 N. D. 83, 112 N. W. 60, this court says:

“Appellant's seventh assignment of error is predicated upon the ruling of the court in permitting the mother of the child to testify as to statements made to her by such child.” The testimony complained of related to statements made to her by such child. “The testimony complained of related to statements made by Lena to her mother on June 16th, being three days after the offense was committed, in which she told her mother, in effect, that defendant had taken indecent liberties with her person. These statements were merely hearsay, and were incompetent, therefore, in chief, to prove the commission of the offense, unless they come within some exception to the general rule as to hearsay testimony. The courts hold quite generally, however, that it was proper to prove that the prosecutrix, recently after the commission of the offense, made complaint to others as to the commission of such offense, basing their decision upon the ground that such testimony is admissible as being in corroboration of her testimony in court. Other courts base their decisions, sustaining the admissibility of such testimony, upon the ground that such statements are a part of the res gestæ; while others give as a reason for the rule that the failure to complain of the outrage is a circumstance indicating that the female was a consenting party to the act. The latter reason does not appeal to us with much force; for, if such is a reason upon which the rule is based, then such rule could not well apply to a case such as this, where the outraged female is but eight years of age and hence below the age of consent. If the rule is to apply at all, we think it certainly should apply in a case of this kind. We think the better rule is that such proof may be admissible as part of the res gestæ, if the statement was made immediately following the commission of the crime, in which event the particulars of the complaint may be proved * * * as part of the res gestœ. (Italics ours.) In most jurisdictions such testimony * * * is restricted to a mere statement of the fact that a complaint was made without disclosing the particulars thereof. * * *”

At 33 Cyc. 1462, it is said:

“Nor as a rule are her declarations admissible as proof of the crime charged, or as corroborating evidence, unless they are part of the res gestæ or unless they are admissible under the rules in the particular jurisdiction as to the admissibility of complaints. But her declarations immediately after the outrage are admissible as part of the res gestæ.”

And at page 1466:

“So, if the statements are made immediately after the...