Ewing v. United States

• Decision Date: 01 December 1942
• Docket Number: No. 8308.,8308.
• Citation: 135 F.2d 633,77 US App. DC 14
• Parties: EWING v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

77 US App. DC 14, 135 F.2d 633 (1942)

EWING v. UNITED STATES.

No. 8308.

United States Court of Appeals for the District of Columbia.

Decided December 1, 1942.

Writ of Certiorari Denied March 15, 1943.

Mr. James J. Laughlin, of Washington, D. C., for appellant.

Mr. Charles B. Murray, Asst. U. S. Atty., of Washington, D. C., with whom Mr. Edward M. Curran, U. S. Atty., Mr. John W. Fihelly, Asst. U. S. Atty., and Mr. John P. Burke, Asst. U. S. Atty., all of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

Writ of Certiorari Denied March 15, 1943. See 63 S.Ct. 829, 87 L.Ed. ___.

RUTLEDGE, Associate Justice.

Appellant was convicted and sentenced for rape. On appeal he complains that: (1) The evidence is insufficient to sustain the verdict; (2) he was not adequately represented by counsel at his trial; (3) there was misconduct in the assistant district attorney's interrogation of a witness; and (4) there was error in the Government's cross-examination of a defense witness, Miss Chamberlin, and in permitting rebuttal of her testimony. The evidence will be recited only so far as is necessary to make the contentions clear.

I. The argument that the evidence does not sustain the verdict seems to take two forms: (1) that it does not show that the act was without the complaining witness' consent; (2) that there was no sufficient corroboration of her story. It is valid in neither respect.

The girl, a young woman of nineteen, who had come to Washington from Utah within two weeks of the occurrence, gave the only direct testimony concerning the act and the details of its commission. She testified that appellant, fifty-five years old, broke into the bedroom she was occupying, after she retired, and committed the act against such resistance as she could offer until, through force and threats which put her in fear of her life, he overcame her resistance and accomplished his purpose. His only defense and his testimony were, not that she consented, but that the entire incident, including the intercourse, never had taken place. Throughout the trial and during the long hearings held on the motion for a new trial he maintained his denial of having had relations with the girl or that he had broken into, entered or been present in her room when she said the attack occurred. His story and hers were directly contradictory in this respect, and each was supported by circumstantial evidence, his also by the testimony of Miss Chamberlin, in whose apartment the room was located.

Yet in one aspect the argument on appeal that the evidence does not sustain conviction is that the girl consented. If this had been the defense, there was evidence which might have brought about a verdict to that effect. But such a view of the event was contradicted both by the prosecutrix' testimony and by appellant's. His denial that the event occurred was wholly inconsistent with any theory of consent. On the other hand, her testimony and the circumstantial evidence supporting it were clearly sufficient, if believed, to show that the intercourse occurred and took place by force and against her will, in the sense that her resistance was overcome by physical force and threats which put her in fear of her life. Some of the details, as she related them, indicated that resistance might have been more sustained and vigorous, alarm and complaint more prompt. They would have been more persuasive factually for appellant if the defense had been consent, though even in that case the issue would have been for the jury to resolve. As it was, their adverse effect, if any, upon the Government's case went primarily to the complaining witness' credibility, more particularly as to whether the force and threats which she said were used in fact had the effect of putting her in mortal fear. Notwithstanding these details, her story was not inherently incredible and, if believed, was sufficient to sustain the verdict's implicit finding that she was put in fear and that the incident occurred in other respects as she said it did. There are cases, especially older ones from other jurisdictions, which seem to require resistance to the victim's ultimate physical powers in order to sustain conviction for this crime.¹ But the law is no longer in this last-ditch stage. Whatever it may have been in other times, it is generally settled now that consent is not shown when the evidence discloses resistance is overcome by threats which put the woman in fear of death or grave bodily harm, or by these combined with some degree of physical force.² From a careful reading of both the printed appendix and the voluminous original record, we have no doubt the evidence in this case was sufficient to make out all the elements of the crime, including the necessary want of consent and use of force and threats to overcome the girl's resistance. To hold otherwise would invade the jury's function.

II. There was ample corroboration of the complaining witness' testimony under the rule of Kidwell v. United States, 1912, 38 App.D.C. 566. In that case this court stated: "We are aware that a conviction for this offense will be sustained upon the testimony of the injured party alone. But where the courts have so held, the circumstances surrounding the parties at the time were such as to point to the probable guilt of the accused, or, at least, corroborate indirectly the testimony of the prosecutrix."³ 38 App.D.C. at page 573.

Appellant's argument in terms requests that we "inquire again into the whole theory of the necessity of corroboration" and, in effect, reverse the rule stated in the Kidwell case, substituting one which requires "direct corroboration of the prosecutrix." If by "direct corroboration" is meant the testimony of an eyewitness, the result would be in most cases that conviction could not be had except upon the defendant's confession. If it means less than that, it is hard to see how it could relate to anything other than circumstantial evidence which supports the prosecutrix' story, and this is what the Kidwell case requires. Lord Hale's aphorism concerning these accusations still is valid and for that reason, as the Kidwell case declares, "it is the duty of the court to carefully safeguard the defendant at every stage of the proceeding, and secure to him a trial legal in all respects." Hence corroboration, in the sense that there must be circumstances in proof which tend to support the prosecutrix' story, is required, and for lack of it Kidwell's conviction for one offense was reversed.

But to safeguard the defendant by requiring corroboration in this sense is one thing. To throw around him a wall of immunity requiring the testimony of an eyewitness or "direct evidence," which is more than circumstantial, in support of the prosecutrix' story, is another. We are satisfied that the rule stated in the Kidwell decision is one which should not be overthrown.⁴

We shall not state the corroborating circumstances in detail. They are found in the proof, among other things, that appellant was present in Miss Chamberlin's apartment visiting with her and the prosecutrix shortly before the crucial time, and spent the night either in the living room or in a room across the hall; that force was used against the bedroom door, making a new break in the already defective lock, with no other evidence to explain the new condition; that complaint was made to friends within twelve hours, cf. Roney v. United States, 1915, 43 App.D.C. 533, 535, to the police within twenty-four, cf. Lyles v. United States, 1902, 20 App.D.C. 559, 563; and was followed shortly by appellant's arrest and confrontation with the prosecutrix. His conduct when first arrested and questioned also might have been regarded as corroborative to some extent. Medical evidence established that the girl had recently had intercourse for the first time and within such a period that the jury could find it occurred on the night in question, cf. Lyles v. United States, supra. Physical exhibits and medical testimony established the presence of blood and spermatazoa upon clothing the girl wore that night after she retired; and several witnesses with whom she discussed the matter on the following day testified to her unusually nervous and distraught condition. There was an entire absence of proof of any motive on her part to charge appellant with the offense other than the reason she gave; and her statements made first to the police, then at the preliminary hearing, and finally at the trial were essentially and substantially consistent. Nor were they shaken by vigorous cross-examination. Other circumstances, which need not be set forth also corroborated her testimony.

As against these circumstances were others, as we have stated, which tended to corroborate the appellant's version, that he had not had intercourse with the woman, and still others the view that the intercourse was had with her consent. But, regardless of this inconsistency, the entire evidence tending to appellant's advantage did not deprive the circumstances proved in support of the girl's story of corroborative effect. It merely created conflict with them. Within the prevailing rule, stated in Kidwell v. United States, there was sufficient corroboration.

III. Appellant was represented at his trial by five attorneys, including his son who did not enter formal appearance. The brief concedes his chief counsel was and is "a civil lawyer of ability and distinction" and that the principal associate "is an expert criminal lawyer with many years of experience." In view of these concessions we agree with present counsel, who came into the case only when the motion for a new trial was pending, that "with such an array of counsel to make the allegation that he appellant was not adequately represented would seem to come under the heading of `Believe it or Not' or `Strange as it Seems.'" Perhaps this should suffice to...