People v. Bastian, 62

• Decision Date: 14 May 1951
• Docket Number: No. 62,62
• Citation: 47 N.W.2d 692,330 Mich. 457
• Parties: PEOPLE v. BASTIAN.
• Court: Michigan Supreme Court

Page 692

47 N.W.2d 692

330 Mich. 457

PEOPLE v. BASTIAN.

No. 62.

Supreme Court of Michigan.

May 14, 1951.

Frank G. Millard, Atty. Gen., Edmund S. Shepherd, Solicitor Gen., Lansing, Stephen D. Condon, Prosecuting Atty., Houghton County, Hancock, for the State.

Joseph M. Donnelly, Houghton, for respondent-appellant.

Before the Entire Bench.

CARR, Justice.

Defendant was tried in circuit court under an information charging statutory rape, C.L.1948, § 750.520, Stat.Ann. § 28.788. The trial judge in submitting the case to the jury directed attention to the included offenses, and a verdict was returned that was construed by the court as 'guilty of assault with intent to commit the crime of rape.' Sentence was imposed for such offense and defendant, on leave granted, has appealed.

The information alleged that the offense was committed on February 26, 1948, in the city of Hancock, upon a girl 15 years of age. It was her testimony on the trial that defendant undertook to take her home from the bakery where both parties were employed, that they went for a ride, and that the offense was committed in a part of the city apparently somewhat removed from habitations. She also testified to three or four subsequent occasions when she rode with defendant in a bakery truck. It was her claim that on each occasion he indulged in conduct indicating affectionate feelings toward her. Defendant in his testimony denied his guilt but admitted riding with the girl in question, herein referred to as the prosecutrix, on two or three occasions, including the evening when the prosecution claimed the offense was committed. He testified in substance that prosecutrix made advances to him to the extent of soliciting him to have sexual relations with her, but that he refused to do so and took her to her home. His testimony indicates that he was offended by her conduct, and that she became very angry at him. He further claimed that she told him that she had previously had sexual relations with others.

At the conclusion of the people's case counsel for defendant moved for a directed verdict of not guilty on the ground that the testimony of the prosecutrix, which was not corroborated as to the commission of the specific act in question, was impeached to such extent that the jury ought not to be permitted to pass on the guilt of the defendant. The motion was denied, and it is now claimed in defendant's behalf that the ruling was erroneous. We are unable to agree with this contention. The credibility of the prosecutrix was open to question, but it was for the jury to determine the weight to be given to the impeaching proofs. The jury had the right to believe the testimony of prosecutrix and to base a conviction thereon. There was no error in the denial of the motion.

In the course of the direct examination of the prosecutrix she was asked concerning acts of intercourse with others during the month of June, 1948, and if defendant was the first person with whom she had had intercourse. She answered the latter question in the affirmative, and stated further, in substance, that she had had improper relations with 11 boys during the period referred to in the prosecutor's question. Following a third question along the same line, counsel for defendant moved that the questions and answers be stricken. No reason was assigned in support of the motion. The trial court struck out the last question but permitted the questions and answers above indicated to remain. It is now insisted that this was error. The record shows, however, that the testimony of prosecutrix as to her relations with others was in part at least made the basis of an attempt by defendant to show that prosecutrix was a sexual psychopathic person, and that her testimony should be weighed in the light of that fact. The testimony of a physician who was in the courtroom while prosecutrix was testifying, and who made his observations and conclustions from her statements and general attitude, was introduced in support of this claim. The defendant is scarcely in position now to claim that he was prejudiced by proof as to the misconduct of prosecutrix with others.

It further appears from the record that prior to the testimony that defendant asked to have stricken, the prosecutrix, in giving the details relating to the commission of the offense charged against defendant, stated, apparently by way of explanation of her conduct and her failure to complain of defendant's conduct, 'Well, it was the first time I had ever been out with a man and it was a new experience to me to be out with one, and I couldn't remember much.' No objection was made to such statement nor does the record disclose any motion to strike it out. Defendant does not predicate any claim of error based on the quoted testimony of prosecutrix, nor is he in position to do so. People v. Counts, 318 Mich. 45, 27 N.W.2d 338. It may be assumed that the trial judge had in mind in declining to strike from the record the subsequent testimony of which complaint is now made that the claim of the prosecutrix as to the matter in question had previously been placed before the jury. It may be noted also that defendant's testimony as to the conduct of prosecutrix, her statements to him, and his attitude toward her, rendered proper testimony of the character in question. Without discussing the matter in further detail, we conclude that the action of the trial judge in permitting the testimony to stand does not constitute reversible error.

In presenting...