People v. Abbott

• Decision Date: 10 November 1893
• Court: Michigan Supreme Court
• Parties: PEOPLE v. ABBOTT.

56 N.W. 862

97 Mich. 484

PEOPLE v. ABBOTT.

Supreme Court of Michigan

November 10, 1893

Error to circuit court, Kent county; Edwin A. Burlingame, Judge.

John Abbott was convicted of rape, and appeals. Reversed.

Nathan P. Allen, for appellant.

A. N Ellis, Atty. Gen., and Alfred Wolcott, Pros. Atty., for the People.

LONG J.

Respondent was convicted of the crime of rape upon one Annie Punderson a girl of 10 years of age, in the Kent circuit court. Several errors are assigned.

1. That the court erred in excluding the testimony of the girl, Annie Punderson, as to her having had carnal intercourse with other men prior to the time of the alleged offense. The statute provides: "If any person shall ravish and carnally know any female of the age of fourteen years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of fourteen years, he shall be punished by imprisonment in the state prison for life or for any term of years; and such carnal knowledge shall be deemed complete upon proof of penetration only." 3 How. St. � 9094. In People v. Glover, 71 Mich. 303, 38 N.W. 874, the case was brought under this statute, and error was alleged upon the refusal of the court to allow the respondent to show that the reputation of the girl for chastity was bad. It was held that, the statute having fixed the age of consent at 14 years, it would be no answer to the charge that she had a bad reputation for chastity. The ruling of the court in the present case excluded the inquiry as to whether she had had sexual intercourse with other men prior to that time, and was correct for the reasons given in People v. Glover, supra. The offense is to unlawfully and carnally know a female child under the age of 14 years, and it is no less an offense within the terms of the statute, if the child has had intercourse with other men prior to that time. The court was not in error in excluding the evidence. But though the court did exclude, at the time it was first offered, evidence of this character, it was afterwards admitted, and respondent's counsel drew from the girl the fact that at other times prior to the alleged offense she had had intercourse with several other men. The court admitted this testimony on the claim of counsel for respondent that it was competent as bearing upon the girl's credibility. It was not competent, in this case, even for that purpose. If the girl had been of the age of consent, it might be competent to admit evidence of her general reputation for chastity, as bearing upon the probability of her story, but specific acts of unchastity could not be inquired into. People v. McLean, 71 Mich. 309, 38 N.W. 917. But here the law conclusively presumes that the girl could not give her consent, and every act of intercourse with her would be a crime committed against her, and such acts could not therefore, affect her credibility. Her reputation for truth and veracity could be inquired into the same as of an adult, but she could not be impeached by her acts of intercourse.

2. It is claimed that the court was in error in allowing the girl to state that the respondent had had interourse with her prior to the date of the offense charged. There was no error in this. While such testimony is not admissible for the purpose of making it more probable that the offense charged had been committed, yet it was admissible for the purpose of showing the relation of the parties, and the opportunity offered the respondent of meeting her. In Strang v. People, 24 Mich. 6, the prosecutrix was permitted, though above the age of consent, to testify to another act of intercourse with her by respondent. The court there said it was admissible for the purpose of explaining to some extent the fear the witness was under, and as tending to account for her submission to his will at the time of the assault charged; and that the court below, in submitting the case to the jury, correctly instructed them that they were to regard it for that purpose only. In the present case the court instructed the jury that they must ignore every other offense testified to except the one charged in the information, and that this testimony was admitted for the purpose only of showing the relation of respondent with her, and his opportunity to have had connection with her on the occasion when the offense is charged to have been committed, and that what he may have done before he was not to be charged with in this prosecution.

3. It is charged that the court erred in permitting the prosecutor to ask one of the witnesses for the people,...