Lovely v. United States

Decision Date10 August 1948
Docket NumberNo. 5740.,5740.
Citation169 F.2d 386
PartiesLOVELY v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

James F. Dreher and David W. Robinson, both of Columbia, S. C., for appellant.

Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C., and Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C. (Ben Scott Whaley, U. S. Atty., of Charleston, S. C., on the brief), for appellee.

Before PARKER and DOBIE, Circuit Judges, and BARKSDALE, District Judge.

PARKER, Circuit Judge.

This is an appeal from a sentence of life imprisonment in a rape case. The jurisdiction of the federal courts rests on the fact that the crime was alleged to have been committed on the Federal Reservation at Fort Jackson, South Carolina. Error is alleged in the admission of testimony and in the charge of the court to the jury, the principle error relied on being the admission of testimony that the accused committed rape upon another woman several weeks prior to the crime alleged in the indictment.

According to the testimony of the prosecutrix, accused took her to the officers club at Fort Jackson, where he tried to induce her to drink with him, and later drove with her in his automobile to a lonely spot on the federal reservation where he proposed sexual intercourse and, when she would not consent, proceeded to rape her. His version of the matter was that she consented to the intercourse. There is no reason here to go into the details of the testimony. It is enough to say that sufficient evidence was introduced by the government to warrant the jury in convicting of rape but that, on the other hand, there was evidence which, if accepted by the jury would have required an acquittal. The question was one of fact, with much dependent upon what weight was accorded the testimony of the accused. Before he testified, the sole issue in the case was whether he had carnal knowledge of the prosecutrix forcibly and against her will. After his testimony, the carnal knowledge being admitted, the only issue was whether it was with her consent.

After the prosecutrix had testified to all the circumstances of the rape by the accused, the prosecution introduced a statement which he had made to an official of the Federal Bureau of Investigation, admitting that he had had the prosecutrix out with him in his automobile on the night in question but denying that he had had sexual intercourse with her. The prosecution was then allowed, over the objection of accused, to introduce the testimony of another woman to the effect that accused had taken her out in his car and raped her on the Fort Jackson reservation about fifteen days prior to the alleged rape on the prosecutrix, and to go into the circumstances as fully as though that case were on trial. The Court stated that this evidence was admitted to prove "identification, guilty knowledge, intent, motive, scheme or plan", and in charging the jury, said that it was admitted for the purpose of proving "identity, intent, motive, guilty knowledge, or of showing a plan or scheme or bent of mind or design of defendant".

We think there can be no question but that the admission of this testimony was reversible error. There was no issue of identity in the case, nor of knowledge, motive or intent, and the crime was not of the sort, like a stock swindling scheme or murder for insurance, where the commission of other crimes may tend to establish a plan from which the crime charged can be said to have resulted. The accused had admitted that he had had prosecutrix out in his car on the occasion in question and she had testified that he had ravished her at that time. There was no suggestion that anyone else had ravished her; and upon his statement to the F. B. I., the only question was whether he had had carnal knowledge of her forcibly and against her will. The fact, if it was a fact, that he had ravished another woman some weeks before, threw no light whatever on that question. It showed merely that he was a bad man, likely to commit that sort of crime; and this is precisely what the prosecution is not allowed to show in a criminal case.1 Of what avail would be the rule that the character of a defendant on trial may not be attacked unless he puts it in issue, or that an accused's denial on cross examination of criminal conduct inquired about for purpose of impeachment may not be contradicted except by the record of conviction, if it were permissible to introduce parol evidence of other crimes merely for the purpose of showing the accused to be a man of bad character likely to commit the crime charged?

It is true, of course, that evidence which has a reasonable tendency to establish the crime charged in the indictment is not rendered inadmissible merely because it establishes another crime; and the question which arises with respect to this sort of evidence is whether or not it has such tendency. In ordinary cases, it is perfectly clear that evidence of other crimes committed by the accused has no such tendency and is properly excluded as irrelevant. Evidence of the commission of similar offenses closely related in time and place may, however, be relevant on such matters as identity, guilty knowledge, motive or intent, where these are in issue, or may tend to establish a criminal plan or design out of which the crime charged has originated; but it is well settled that such evidence is not admissible where it has no relevance or probative value except in so far as it may show a tendency or likelihood on the part of the accused to commit the crime. See articles by Professor Stone, 46 Harvard Law Review 954 and 51 Harvard Law Review 988; Sutherland v. United States, 4 Cir., 92 F.2d 305, 308; Simpkins v. United States, 4 Cir., 78 F.2d 594; Breedin v. United States 4 Cir., 73 F.2d 778; Boyd v. United States 142 U.S. 450, 12 S.Ct. 292, 295, 35 L.Ed. 1077. Directly in point is the case last cited, where a murder had been committed in the course of a robbery and proof of guilt of robberies on other occasions was admitted against the defendants, on some such contention of identity and intent as is advanced here. In reversing the conviction and ordering a new trial, the court, speaking through Mr. Justice Harlan said:

"Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death."

The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence. If such evidence were allowed, not only would the time of courts be wasted in the trial of collateral issues, but persons accused of crime would be greatly prejudiced before juries and would be otherwise embarrassed in presenting their defenses on the issues really on trial. In the case at bar for instance, not only was the trial prolonged by controversies foreign to the issue before the jury, but accused was called upon to defend another charge of rape, while his hands were full defending the charge contained in the indictment, and the jury was necessarily given the impression, although his character had not been placed in issue, that he was a bad man who had been guilty of other crimes and who might well be convicted on that account. As was well said in the leading opinion in the celebrated Molineux case, People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 293, 62 L.R.A. 193:

"The general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. 1 Bishop, New Crim.Proc. § 1120. This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proved guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto."

And in the dissenting opinion of the Chief Justice in that case, it was said with equal force.

"There is no controversy in this court — nor out of it, so far as I know — touching the general rule that evidence of the commission by him of other crimes is not admissible upon the trial of a defendant charged with crime. It is only on rare occasions that proof of the commission of another crime by a defendant is either necessary or helpful towards establishing the crime with which he is charged. Hence, the evidence is ordinarily irrelevant, while at the same time its admission would necessarily operate to so prejudice a jury against a defendant as that in a doubtful case it might control the verdict."

While evidence of other similar offenses is held admissible for the purpose of establishing intent in cases of assault with intent to commit rape (Wigmore on Evidence, 2d ed., sec. 357), and...

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