Dickerson v. State
| Decision Date | 03 December 1910 |
| Docket Number | 628 |
| Citation | 18 Wyo. 440,111 P. 857 |
| Parties | DICKERSON v. STATE |
| Court | Wyoming Supreme Court |
Rehearing denied June 14, 1911, Reported at: 18 Wyo. 440 at 473.
ERROR to the District Court, Laramie County, HON. DAVID H. CRAIG Judge.
The material facts are stated in the opinion.
Affirmed.
N. R Greenfield, for plaintiff in error.
The information is insufficient for the reason that it does not allege in definite and certain language, the materiality of the false testimony. The alleged false testimony could not ordinarily be in any way material to an issue arising out of a plea of not guilty to a charge of rape. It might be a question material to the issues in such a case whether the defendant was diseased at the time of the rape, but whether he was so diseased before or after that time would be wholly immaterial. The information does not allege the date of the assault charged by the information upon which the defendant was previously tried. It is submitted, therefore, that the motion to quash should have been sustained. (2 McClain's Cr. L., Sec. 883.) The information is also defective for the reason that it does not charge that the defendant knew to be true the facts which the information alleges to be true. The argument as to the motion to quash is equally applicable to the demurrer which was filed and overruled. There are two methods provided by law for charging the materiality of the testimony alleged to be false. The first is to allege generally that the testimony in question was material, and the second to set forth in the information facts from which the materiality of the testimony appears. The first method is the one more generally employed, but where it clearly appears from the facts set forth that the testimony could not have been material, the defect is not remedied by a general allegation that it was material. The allegation of materiality in the information here is contradicted by the other facts recited in the information, and the demurrer as well as the motion to quash should have been sustained.
A plea in bar is a constitutional right of a defendant when brought before the court to plead to the information. (Const., Art. I, Sec. 11.) The plea filed in the case at bar is in proper statutory form and it was error to strike it from the files or dismiss it. It was the duty of the prosecutor to make reply to the plea as provided by Section 5331, Revised Statutes, and the issue joined on the plea should have been submitted to the jury as the statute provides. (Pizans v. State, 20 Tex.App. 139; Coon v. State, 21 Tex.App. 332, 17 S.W. 351; Troy v. State, 10 Tex.App. 319; Goode v. State, 70 Ga. 752; Lovett v. State, 80 Ga. 255, 4 S.E. 912; U. S. v. Butler, 38 F. 498; Cooper v. Com., 106 Ky. 909. 45 L. R. A. 216, 90 Am. St. 275.)
The trial court took the view that the question of materiality was entirely for the court to determine, a view in which we do not agree, and the jury should therefore have been excluded while testimony bearing upon the materiality was being heard by the court. The files of the rape case were improperly and erroneously admitted in evidence. These papers could have had no other tendency than to prejudice the jury against the defendant. The court erroneously allowed the prosecution to introduce so much of the testimony of the prosecutrix in the rape case as it deemed necessary to prove the materiality of the alleged false testimony, thus leaving the matter entirely in the discretion of the prosecution and shutting off all objection on the part of the defendant. The testimony of the prosecutrix and Doctor Johnston that had been given on the former trial could not have any other effect than to inflame the jury and prejudice it against defendant. Further, it was wholly immaterial and did not in the slightest manner bear upon the materiality of the evidence upon which perjury was assigned. It was admitted without any instructions from the court limiting its purpose and effect, and it left the jury where it might convict the defendant of rape and not of perjury. It not being permissible to introduce evidence to contradict these statements, and the court refusing to instruct as aforesaid, the admission of the evidence was prejudicial. The evidence of the defendant in the rape case was properly read to the jury to establish the fact that he so testified, although it was not offered for that purpose, but the evidence of other witnesses on the trial should have been limited by instructions to the only purpose for which it was admissible. (Freeman v. State, 43 Tex. Cr. 580, 67 S.W. 499.) The testimony of the witnesses who were in jail with the defendant to the effect that the latter was suffering with the disease while he was in jail related wholly to an immaterial part of the assignment of perjury, viz: that he had never had the disease. It is clear that the entire evidence of these witnesses should have been excluded. The evidence as to the assault should have been excluded for the reason that the defendant had been acquitted of the crime of rape. When a fact has once been judicially determined, that determination is conclusive in all controversies between the same parties, though the subject matter of the two controversies are not the same. (U. S. v. Butler, 38 F. 498; Cooper v. Comm., supra; Petit v. Comm., supra; Coffey v. U. S. 116 U.S. 436; Green v. Bogue, 158 U.S. 478; Freeman on Judgments, 253.) Moreover, the questions propounded to the prosecutrix by counsel for the State called for conclusions, and the objections thereto should have been sustained. The testimony of other witnesses, such as that of Claude Smith, related to a wholly immaterial matter.
It was error to exclude the testimony of Doctor Kieffer given upon the former trial of the defendant, said witness having died since that trial. An offer of proof was duly made. The evidence was material and vital, and it was clearly admissible. The testimony of Doctor Kieffer was not only admissible and competent, but it was of such character and weight that it is safe to say it would have acquitted the defendant, so that its exclusion was harmful and reversible error, ever were there no other error in the case.
The court did not attempt to define the issues in any of the instructions given to the jury, but in the second instruction the elements of crime necessary to be proven beyond a reasonable doubt in order to convict were incorporated. The instruction fails to incorporate one important and vital element, and it is therefore clearly erroneous. It was necessary to find that the alleged false testimony was not only false, but also material to the issues in the rape case, and although the question of materiality is generally a question of law for the court, in this case it was a question of fact to be determined by the jury under a proper instruction. (2 McClain's Cr. L., Sec. 866; 2 Bishop Cr. L., Sec. 935.) The definition of reasonable doubt given in the third instruction is erroneous and prejudicial. It was defined in that instruction as a doubt for which a reason can be given; that it must arise out of the evidence in the case; and that the jury cannot hunt up doubts, &c. (Siberry v. State, 133 Ind. 677; State v. Cohen, 108 Ia. 208; Morgan v. State, 48 Ohio 371; Cowan v. State, 22 Neb. 519; Carr v. State, 23 Neb. 749; People v. Stubenvail, 62 Mich. 329; Brown v. State, 105 Ind. 385; Harvey v. State, 125 Ala. 47; Klyce v. State, 78 Miss. 450.) We respectfully submit that this erroneous instruction is sufficient to cause a reversal of the case. Prosecutors should learn that the term "reasonable doubt" defines itself and that elaboration of it only leads to error and confusion.
The fifth instruction is erroneous for the reason that it assumes that certain matters were testified to in the rape case instead of leaving that question to be determined by the jury, like any other fact, and because the only question it left for determination by the jury was the determination of the falsity of the testimony mentioned. The court practically instructed the jury that the defendant testified in the rape case as alleged in the information and that such testimony was material to the issues in that case. It was error to so instruct. (2 McClain's Cr. L. 866, 2 Bishop Cr. L. 935; Foster v. State, 32 Tex. Cr. 39; Washington v. State, 23 Tex.App. 236; McAvoy v. State, 39 Tex. Cr. 684; Young v. People, 134 Ill. 37.) The eighth instruction which was given on behalf of the State is particularly vicious because it singles out the defendant from the other witnesses in the case, and instructs them that the fact that he is the defendant has a tendency to impeach and discredit his testimony, but that the fact is not of itself sufficient to have that effect, though the jury are urged to bear in mind that he is the defendant in considering the testimony. This instruction was error. (Bird v. State, 107 Ind. 154; Hartford v. State, 96 Ind. 461; Veatch v. State, 56 Ind. 584; Unruh v. State, 105 Ind. 117; State v. Austin, 113 Mo. 538; State v. Miller, 162 Mo. 253; State v. Smith, 8 S.D. 547; Tardy v. State, 46 Tex.Crim.App. 214; State v. McDonald, 129, N. C. 523; Long v. State, 42 Fla. 612.)...
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