Garden v. State, 4000

• Decision Date: 03 December 1957
• Docket Number: No. 4000,4000
• Parties: Kenneth S. GARDEN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 652

318 P.2d 652

73 Nev. 312

Kenneth S. GARDEN, Appellant, v. The STATE of Nevada, Respondent.

No. 4000.

Supreme Court of Nevada.

Dec. 3, 1957.

Rehearing Denied Dec. 19, 1957.

Harry E. Claiborne, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., George M. Dickerson, Dist. Atty., VeNoy Christofferson, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

MERRILL, Justice.

This is an appeal from judgment of conviction of the crime of statutory rape.

The first assignment of error is that the jury verdict of guilty is unsupported by any substantial evidence; that the trial court, under the evidence, should have advised a verdict of not guilty. Appellant has cited authority upon the proposition that a scintilla of evidence is not enough; that there must be substantial evidence to provide support for the verdict. This proposition does not meet the problem presented by this case, however. There can be no doubt of the substance of the proof if that proof be regarded as credible. The problem is exclusively one or credibility.

The prosecutrix was appellant's stepdaughter, age 12 years. She testified that the offense took place on Monday, May 21, 1956 in the family home in Las Vegas at about 5:30 o'clock P.M. Corroborating her testimony was that of her sister, age ten years, who testified to having witnessed acts of intercourse between her sister and her stepfather on several occasions. The prosecutrix testified in some detail to the nature of the acts constituting the offense. These acts, if committed, unquestionably constituted the crime of statutory rape. This testimony, if believed, unquestionably provided substantial proof of guilt.

In four respects doubt is cast upon the truth of this testimony. (1) The prosecutrix had testified under oath at a juvenile court hearing that the offense had been committed Sunday, May 20. At the time of trial she was unable to explain this discrepancy but insisted that Monday, the 21st, was the true date. (2) Testimony of several witnesses called by the appellant accounted for his presence elsewhere during the late afternoon of Monday, the 21st. (3) The prosecutrix testified that she had engaged in acts of intercourse with appellant over a substantial period of time, commencing when the family resided in Oregon, continuing as the family moved to California, to Nebraska, to Reno, Nevada, and, finally to Las Vegas. A Nebraska physician called as witness by the appellant, testified that he had examined the prosecutrix in March, 1955 and that at that time she showed no indication of having engaged in intercourse.

These issues and inconsistencies constitute no basis for reversal. It was the jury function to resolve these matters and the manner in which it did so and the weight it gave to the evidence will not be questioned upon appeal. 'Contradictions and inconsistencies in the testimony of a witness alone will not constitute inherent improbability.' People v. Amadio, 25 Cal.App. 729, 731, 145 P. 151, 152, as quoted in People v. Holman, 72 Cal.App.2d 75, 89, 164 P.2d 297, 305.

The fourth and most serious respect in which the testimony of both girls is impeached is found in the fact that both had, prior to trial, wholly repudiated their original statements as to the guilt of their stepfather and had insisted upon his innocence. Upon cross-examination the prosecutrix admitted that four days after the juvenile court hearing she had told her mother that she had made up the story of her stepfather's misconduct because she was angry with him for punishing her; that during the following few days she had made the same statement of repudiation to appellant's attorney and to four other persons and had signed a statement to that effect at the office of appellant's attorney. Her sister had likewise made a statement to appellant's attorney repudiating her earlier statement to the police that she had witnessed the commission of acts of intercourse.

Notwithstanding their admissions of earlier inconsistent statements, both girls at the time of trial insisted upon the truth of their testimony then given and upon the fact of their stepfather's guilt. Their earlier inconsistencies they explained as due to their desire to prevent their stepfather from having to go to prison.

These earlier repudiations cannot be said to have destroyed the probative value of testimony to the contrary given at the time of trial or to have rendered that testimony incredible as a matter of law. The explanation given by the girls for their inconsistent statements was not inherently improbable. The inconsistencies, then, posed a question of credibility which it was the jury's function to resolve. The jury obviously chose to disbelieve that the detailed description of the manner in which the offense had been committed was a creature of imagination which had been related in juvenile court and on trial below out of longlasting anger. It obviously chose to believe that, while anger may originally have caused the complaint to have been made, still the circumstances of the offense were truly related; that it was the repudiation of the complaint which was false, but that a false repudiation was understandable in the light of the children's affection for or loyalty to their stepfather.

In two California cases the identical problem was faced by the court. Both cases involved statutory rape committed by the defendant upon his own child. In People v. Crawford, 24 Cal.App. 396, 141 P. 824, 827, the court stated, 'It can be readily understood how the...