Crago v. State

• Decision Date: 10 January 1922
• Docket Number: 1010
• Citation: 28 Wyo. 215,202 P. 1099
• Parties: CRAGO v. STATE
• Court: Wyoming Supreme Court

202 P. 1099

28 Wyo. 215

CRAGO v. STATE

No. 1010

Supreme Court of Wyoming

January 10, 1922

ERROR to the District Court, Crook County; HON.E. C. RAYMOND Judge.

Charles Crago was convicted of the crime of statutory rape and brings error. The material facts are stated in the opinion.

Reversed and Remanded.

Thomas A. Nicholas and Hayes & Heffron, for plaintiff in error.

The court erred in permitting the prosecution to read an affidavit purporting to have been made by the witness Carney prior to the trial, out of court and not in the presence of defendant to the effect that he, the witness, witnessed the commission of the crime, and that defendant had admitted to the witness the commission thereof the following morning Carney having failed to testify to suit the plaintiff, this affidavit was used for the purpose of his impeachment and as substantive evidence against defendant, which was highly prejudicial. The affidavit failed as a means of impeachment since the witness had not given evidence detrimental to the state, the affidavit moreover was taken while the witness was in custody. The Wyoming statute is practically the enactment of the old common law procedure, and subject to the well settled distinction that alleged admissions communicated to third persons are hearsay and not substantive evidence of a fact. (Putman v. U. S. 162 U.S. 687.) The Horn case, 73 P. 716 and Arnold v. State, 40 P. 967 are not in point under the facts here. These cases dealt with contradictory statements coming as a surprise. Failure of witness to testify according to expectations does not justify an attempt to prove additional facts ex parte. (3 Jones Ev. 858; 1 Wharton 10th Ed. 484; People v. Jacobs, 49 Cal. 384; State v. Callaghan, 18 S.D. 148; People v. Rufford, 5 Demo. 112; Dunn v. Dunnaker, (87 Mo. 597.) The admission of the testimony of Ashdown, Justice of the Peace, was also erroneous for the foregoing reasons. The evidence was insufficient to sustain the verdict. The case stands on the uncorroborated testimony of the prosecutrix. (State v. Connelly, 59 N.W. 479; Barnett v. State, 94 Ala. 30; Davis v. State, 120 Ga. 433; Conners v. State, 47 Wis. 523.) While the jury has a right to convict upon the uncorroborated testimony of prosecutrix in cases of this character, it is ordinarily improper to do so. (Tway v. State, 50 P. 188; Brown v. State, 106 N.W. 539.) The general rule is that defendant shall not be convicted without corroboration where the testimony of prosecutrix indicates unreliability. (33 Cyc. 1497; Morris v. State, 131 P. 735; Duino v. People, 28 P. 250; State v. Chapman, 88 Ia. 254; State v. Parnelly, 57 Minn. 482.) This case does not present the question of the weight of evidence nor of harmonizing conflicting testimony, nor of determining the credibility of witnesses. It is solely a question of the sufficiency of the testimony to justify a conviction, the evidence being so weak as to justify reversal. (Owens v. State, 35 Tex. 361.) The case follows clearly within the exception to the rule, holding the uncorroborated testimony of plaintiff restricted, and the judgment should be reversed.

W. L. Walls, for defendant in error.

The witness Carney when called to the stand, made an absolutely contrary statement regarding facts appurtenant to the case from what he had made on a prior date, consequently the state was entitled to, and in fact duty bound, to show that the witness had at a previous time, made statements contrary to the statements made at the trial. The state was taken at a disadvantage and by surprise. The admission of this impeached testimony was not error and in fact is provided for by Section 4540 Comp. Stats. 1910, now Section 5809 Comp. Stats. 1920. (Horn v. State, 12 Wyo. 136.) The jury was entitled to know the kind of man the witness Carney was. If the affidavit had been made under duress, defendant had a right to cross examine him and show the facts. It is probably true that the affidavit could not have been used against Carney were he on trial, since it was taken while he was under arrest. The authorities cited by plaintiff in error will be found upon examination to relate to situations entirely unlike the present case. It is erroneously assumed by plaintiff in error that the introduction of the previous inconsistant statements of the witness Carney was the basis of the verdict returned by the jury. This is an erroneous assumption. The testimony of the witness Ashdown merely went to the fact of the making of the affidavit by Carney. The assignments with reference to the giving or refusing to give instructions seemed to have been abandoned by plaintiff in error. The evidence clearly established the commission of the offense charged, there being abundant corroboration of the testimony of the prosecutrix, and appellate courts will not disturb the verdict unless it is clearly against the weight of the evidence. (Phillips v. Territory, 1 Wyo. 82; People v. Loy, 10 Cal. 302; Cornish v. Territory, 3 Wyo. 95; Hansen v. Shelbourne, 25 Wyo. 445.) No substantial right of the plaintiff in error is shown by the record to have been evaded or disregarded, yet a fair and impartial trial by jury.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Defendant was convicted of rape on the person of Ida Leona Edwards, a female under the age of 18 years, and he has brought this case here on petition in error.

The defendant assigns as error the improper impeachment by the state of its own witness Carney. Ida Leona Edwards testified to driving with defendant, Carney, and May Donovan from Spearfish to the ranch of defendant near Sundance; that all of the parties went into the house at defendant's ranch, arriving at the latter place at night; that the lamp was lit but subsequently extinguished; that all four got onto one bed, Carney on one side, the defendant on the other, and the two women between, the prosecutrix being next to defendant. She was uncertain as to whether or not the witness Carney remained in the room all the time or not. The witness Carney corroborated the prosecuting witness generally up to and including the point that the parties all got into one bed; he further stated that he went out at one time and was gone 15 or 20 minutes; that before he left the defendant was sitting on the edge of the bed, and he thought that this was true also when he returned. Up to this point his testimony had been favorable to the state, except, possibly, the statement that he did not, upon his return, see, on account of the darkness, what the defendant and the prosecuting witness were doing. Then Carney was asked as to whether or not he recalled an admission made by the defendant the next morning, to which the witness replied that he remembered none. Thereupon, an apparently animated and somewhat lengthy scene took place, the substance of which is that two questions were asked of the witness twice, namely, as to whether or not he had not made a prior statement in writing as follows: (1) "May came out doors while I was out, and Charles and Leona were on the bed when I went back in. They, Charles and Leona, were right in the act of having sexual intercourse"; (2) "I know they were having sexual intercourse and Charley told me that he had intercourse with her, when we were coming down town the next morning. He said he had no trouble in getting it." The witness answered to both of the questions that he did not remember making such statements, and he further denied that the statements were true. Thereupon, over objection, the statements so claimed to have been made were permitted to be introduced in evidence and read to the jury.

The state claims that proof of the making of these previous statements and the reading of them to the jury was authorized by Section 5809 of the statute, which, so far as pertinent here, reads as follows:

"The party producing a witness shall not be allowed to impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove that he has made, at other times, statements inconsistent with his present testimony."

How far a party should be permitted to impeach his own witness has been the subject of many decisions. Its history is not uninteresting. While we have no exact information, it seems that under the Roman law a party could not generally impeach his own witness. That appears inferentially from Code Justinian 4, 20, 17, and 4, 20, 19. Aside from this, a custom had grown up, traceable at least to the middle of the second century of our era, but which perhaps was but a reversion to primitive type, with modifications, that where it was difficult or impossible for a party to prove his case, he might call upon the other party to prove his claim, or defense, by making his statement under oath. When this was done it was binding, and could not be contradicted. It is commonly called the "decisory oath". Just. 4, 6 18; 4, 13, 4; Dig. 12, 2; Code Just. 4, 1; Paulus Sent. 2, 1. The reason for the finality of the oath was based on the great sanctity attached to the latter. If perjury was committed, no prosecution therefor followed, since God was considered a sufficient avenger thereof. Code, Just. 4, 1, 2; Dig. 12, 2, 1. Then, during the middle ages, was in vogue the system of compurgation, commonly, in England, called the wager of law, which, it seems, has been in existence among a number of races in different parts of the world. Under it a party, more frequently a person accused of crime, was permitted to prove his cause by taking an oath according to a prescribed formulary, supported by a certain number of compurgators, who testified to the verity of the oath taken by the party, and who, therefore, were, substantially, nothing but character...