Callahan v. United States
| Decision Date | 05 February 1917 |
| Docket Number | 2845. |
| Citation | 240 F. 683 |
| Parties | CALLAHAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles J. Heggerty, of San Francisco, Cal., Thomas McGowan, John A Clark, and Leroy Tozier, all of Fairbanks, Alaska, for plaintiff in error.
John W Preston, U.S. Atty., and Casper A. Ornbaun, Asst. U.S. Atty both of San Francisco, Cal.
Before GILBERT, MORROW, and HUNT, Circuit Judges.
The plaintiff in error was convicted of the crime of rape committed upon a girl under the age of consent. It is contended that the court below erred in overruling a demurrer to the indictment for its failure to allege that the act was done 'with her consent.' We find no merit in the contention. 33 Cyc. 1444, and cases there cited.
All persons who had no business before the court were by the order of the court excluded from the courtroom during the trial, but litigants, witnesses, jurors, counsel, officers of the court, and representatives of the newspapers were allowed to be present. The order was excepted to, and is now assigned as error. We think the order was a permissible exercise of the discretion of the court. Reagan v. United States, 202 F. 488, 120 C.C.A. 627, 44 L.R.A. (N.S.) 583.
The only assignment of error that requires extended discussion relates to the admission of certain testimony of one Laura Herrington, a girl of the age of 14 years, who was the playmate and confidential friend of Grace Carey, the victim of the alleged offense. Grace Carey had testified that the offense was committed in the house of the plaintiff in error, whither she had gone pursuant to an appointment with him for that purpose, and that she consented willingly to his act; that she had had intercourse with him on several occasions during the preceding 4 or 5 years; that she was in the house but a short time, and that when she left, the plaintiff in error gave her $3; that soon after going upon the street she met Laura Herrington, and told her what had occurred. Laura Herrington, over the objection of the plaintiff in error, was permitted to testify that Grace Carey told her what the plaintiff in error had done, and exhibited to her the money which she said he had given her. This testimony was received for the purpose of corroborating the testimony of Grace Carey, and the court instructed the jury that if they believed beyond a reasonable doubt that Grace Carey made the statement so testified to, at her first opportunity to tell any person, and that the statement was made immediately after leaving the house of the plaintiff in error, it might be considered by the jury as a corroborating circumstance tending to sustain the truth of the testimony of Grace Carey as to what had just transpired between her and the plaintiff in error. The testimony, although it was hearsay, is claimed by the government to have been admissible as part of the res gestae. The principle on which testimony of the nature of exclamations or remarks made by the victim of an offense, at or immediately after the time of its occurrence, is said, in 3 Wigmore, Sec. 1747, to be--
'based on the experience that under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.'
Again, in section 1749, the same author says:
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United States v. Kobli
...the prior decisions of the latter court in Reagan v. United States, 9 Cir., 1913, 202 F. 488, 44 L.R.A.,N.S., 583, and Callahan v. United States, 9 Cir., 1917, 240 F. 683. 15 Grimmett v. State, 1886, 22 Tex.App. 36, 2 S.W. 631, 58 Am.Rep. 630; State v. Callahan, 1907, 100 Minn. 63, 110 N. W......
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State v. Lawrence
...The court held 'Upon the authority of Reagan v. United States, 9 Cir., 202 F. 488, (44 L.R.A., N.S., 583) and Callahan v. United States, 9 Cir., 240 F. 683, we reject this contention and hold that, despite the exclusion, appellant's trial was a public trial.' The Geise opinion then proceeds......
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State v. Schmit, 39079
...S.E. 368; Minn.St. 631.04.12 Hogan v. State, 191 Ark. 437, 86 S.W.2d 931; Grimmett v. State, 22 Tex.App. 36, 2 S.W. 631; Callahan v. United States (9 Cir.) 240 F. 683; Geise v. United States (9 Cir.) 262 F.2d 151. See, also, United States v. Kobli (3 Cir.) 172 F.2d 919, 924.13 State v. Call......
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State v. Purvis
...113; see Geise v. United States, 262 F.2d 151, 155 (9th Cir.), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80; Callahan v. United States, 240 F. 683 (9th Cir.). The remaining assignments of error require but brief comment. The defendant objected and took exception to the testimony of......