Kennedy v. State, 3795
| Decision Date | 10 June 1970 |
| Docket Number | No. 3795,3795 |
| Parties | James Robert KENNEDY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Raymond B. Whitaker, Casper, for appellant.
James E. Barrett, Atty. Gen., Richard A. Stacy, Asst. Atty. Gen., Cheyenne, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER, and Mc,EWAN, JJ.
James Robert Kennedy was charged and convicted of first degree rape in the district court of Natrona County. This opinion has to do with his appeal from such conviction.
In something of a shotgun approach counsel for appellant has assigned ten grounds for reversal. We have found no merit in any of them.
1. The first contention made for appellant is that there was no showing of force used by defendant. Such contention is not borne out by the record. The prosecutrix testified to being struck by defendant; to her resistance; that she was kicking and crying; and that bruises resulted from the prosecutrix being struck. Other witnesses told of complaints by the prosecutrix; of her clothes being torn; of seeing the bruises and injuries. One of the witnesses who described her injuries was a physician who examined the prosecutrix.
The defendant admitted having intercourse with the prosecutrix. Whether she offered resistance or consented was patently a jury question. State v. Bouldin, Mont., 456 P.2d 830, 834.
2. Appellant claims the trial court erred because it did not grant defendant's motion for directed verdict. This is said to be true because he prosecution did not establish the use of force and because it did not prove venue.
We have already pointed out that there was substantial evidence of the use of force and nothing more needs to be said on that subject. Regarding venue, the defendant himself fixed the place of the intercourse as being near the Casper airport and along a canal. A deputy sheriff testified the vicinity described was within Natrona County and that the canal was entirely within such county. Not only was there ample for the jury to find the act took place in Natrona County, but we can take judicial knowledge of the fact that any place in the vicinity of the Casper airport is within Natrona County. Appellant does not claim the place where he had intercourse with the prosecutrix was in another county.
It is immaterial if part of the evidence we refer to as establishing the use of force and establishing venue may have been introduced after defendant's motion for directed verdict was denied. Neel v. State, Wyo., 452 P.2d 203, 204.
3. Appellant argues the trial court erred in refusing to grant defendant a new trial. The basis for the motion for new trial was that new evidence had been discovered. At the trial the prosecutrix stated she had not had any alcohol to drink. The 'new evidence' claimed by defendant was evidence which might contradict this statement.
Appellant wholly fails to convince us that the matter of whether the complaining witness did or did not drink an intoxicating beverage is so material to defendant's guilt or innocence that a new trial would propably produce a different verdict. Indeed, appellant has not attempted to explain why he believes, if he does believe, that the statement made by the prosecutrix about not drinking had any bearing on the jury's verdict.
In Opie v. State, Wyo., 422 P.2d 84, 85, we reviewed four essential matters which need to be shown in connection with a motion for new trial on the ground of newly discovered evidence. Appellant has not demonstrated to us that those showings were made to the trial court.
4. Appellant complains because the trial court refused to instruct the jury that the charge against defendant is one which is easily made and difficult to disprove; that the complaining witness and defendant usually are the only witnesses; and therefore the law requires that the jury examine the testimony of the prosecuting witness with caution.
Counsel for appellant relies primarily on People v. Williams, 55 Cal.App.2d 696, 131 P.2d 851, 853, as authority for such a cautionary instruction. However, counsel refers to the Williams case as one similar to the instant case 'where the testimony of the prosecutrix is not only uncorroborated, but is also highly subject to contradiction.'
It is apparent from things we have already said that we do not agree the testimony of the prosecutrix was uncorroborated. It is true three were no eyewitnesses who could be expected to corroborate all of the testimony of the complaining witness, but her testimony was corroborated by the testimony of the doctor and by witnesses who heard her complaints and saw her bruises and torn clothes-and also by defendant's admission that he had intercourse.
Aside from the defendant, who is appellant in our court, and the complaining witness, there were two male companions with this defendant. They were also charged with acts of rape. While they could hardly be expected to corroborate the victim's story, they were nevertheless eyewitnesses. Thus, this case is unlike those cases contemplated in the proffered instruction, where testimony on the part of the complaining witness is uncorroborated and where only the complaining witness and defendant are witnesses to the act.
The Williams case specifically recognized that whether a refusal to give a cautionary instruction is prejudicial error depends upon the circumstances of each case. 131 P.2d 851. We find nothing in that case which would repudiate the earlier case of People v. Burnette, 39 Cal.App.2d 215, 102 P.2d 799, 807. In the Burnette case, it was held the kind of cautionary instruction which Kennedy requested may be permissible where the act of intercourse is denied, and where there are no corroborating circumstances. However, where the act is admitted and the only issue is whether force was used, the cautionary instruction was said to have no place in the case.
Concerning the rule in our state, it was held in State v. Koch, 64 Wyo. 175, 189 P.2d 162, 168-169, not to be prejudicial error to refuse such an instruction as Kennedy requested, where testimony of the complaining witness is corroborated. It can be implied we think, from what was said in Koch, that when testimony of the prosecutrix is not corroborated a cautionary instruction should ordinarily be given, unless it appears the jury had a full realization of the duty to view the testimony of the prosecutrix with caution.
Also, mention was made in the Koch opinion of the fact that our court had previously stated, if the court instructs the jury that it may convict the defendant upon the uncorroborated testimony of the prosecutrix, it should give a cautionary instruction. In Kennedy' trial the court did not instruct that the defendant could be convicted upon uncorroborated testimony of the complaining witness. We assume such an instruction was not given because the trial court, like us, considered the testimony of the prosecutrix corroborated.
5. Appellant is claiming the trial court should have allowed the jury the option of finding the defendant guilty of adultery as an included offense in the crime of rape. No authority is cited for this novel contention. We will therefore assume no such authority was found by counsel for appellant. Our statute on adultery, § 6-86, W.S.1957, applies to any person who 'cohabits with another in a state of adultery.' There was no evidence of a cohabitation in this case.
6. Appellant suggests the trial court erred because it refused to allow defendant's counsel to interrogate a juror who supposedly showed by her demeanor that she was not fully sure of her verdict. It would have been pure speculation and guesswork if the trial judge had tried to assume what the juror showed by her demeanor, and we have no way of knowing from the record what she showed by her demeanor.
Appellant cites no authority for his position on this point. On the contrary, he admits there is case law which would indicate denial of his request to interrogate was proper. We would have no basis for considering the denial prejudicial error.
7. Appellant claims error in the giving of instruction 6 which reads:
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GP, Matter of
...of Dr. Krause. We again acknowledged the aforesaid legal definition of "sexual intercourse" when we approved, in Kennedy v. State, Wyo., 470 P.2d 372, 376 (1970) the following instruction in a rape " 'YOU ARE INSTRUCTED there is "carnal knowledge" if there is the slightest penetration of th......
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Brown v. State
...unsavory background of the witness. The recantation was subsequently recanted at the hearing on defendant's motion for new trial; Kennedy v. State, 470 P.2d 372, reh'g denied 474 P.2d 127 (Wyo.1970), cert. denied 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218 (1971)--evidence that the complaini......
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Alcala v. State
...of any fact is rarely attainable and never required in courts of justice.' This same instruction was approved by us in Kennedy v. State, Wyo., 470 P.2d 372, 376, reh. den. 474 P.2d 127. However, at the time appellant's brief was served a rehearing was being considered in the Kennedy case. O......
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Lopez v. State
...evidence fully justifying the verdict of guilty, a cautionary instruction such as that given here is unnecessary. Kennedy v. State, Wyo., 470 P.2d 372, reh. den., 474 P.2d 127 (1970), cert. den., 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218 (1971); State v. Hines, 79 Wyo. 65, 331 P.2d 605 (19......