People v. Borowski

• Decision Date: 03 April 1951
• Docket Number: No. 69,69
• Citation: People v. Borowski, 330 Mich. 120, 47 N.W.2d 42 (Mich. 1951)
• Parties: PEOPLE v. BOROWSKI.
• Court: Michigan Supreme Court

Page 42

47 N.W.2d 42

330 Mich. 120

PEOPLE v. BOROWSKI.

No. 69.

Supreme Court of Michigan.

April 3, 1951.

Octavio P. Guerra, Port Huron, for appellant.

Stephen J. Roth, Atty. Gen., Reg. S. Atkins, Pros. Atty., Delmer L. Cleland, and Robert J. McIntosh, Asst. Pros. Attys., St. Clair County, Port Huron, for the People.

Before the Entire Bench.

CARR, Justice.

Defendant was tried in circuit court under an information charging the crime of statutroy rape ¹ on a 12 year old girl, herein in referred to as the prosecutrix. The offense was alleged to have been committed September 24, 1947. The jury returned a verdict of guilty, a motion for new trial was denied, and sentence was imposed. From the conviction and judgment, defendant, on leave granted, has appealed.

On the trial of the case defendant, a man 50 years of age, was a witness in his own behalf, and denied his guilt of any improper relations with the prosecutrix. During the course of his cross-examination the prosecuting attorney introduced in evidence a letter written by defendant to the prosecutrix in December, 1947, in which a $5 bill was enclosed. Defendant claimed that the gift of the money was made because the girl had assisted him in selling a dog for $50. Thereafter counsel for defendant recalled the prosecutrix for further cross-examination with reference to the matter. It is now urged that receiving the letter in eivdence was error. No objection to its introduction was made at the time, and in consequence appellant is not now in position to urge that the court was in error in failing to exclude it. People v. Cleveland, 295 Mich. 139, 294 N.W. 124; People v. Elliott, 322 Mich. 313, 33 N.W.2d 811; People v. Loudenslager, 327 Mich. 718, 42 N.W.2d 834. Moreover the letter, having been identified by defendat, was competent for purposes of impeachment. It indicated a desire on defendant's part to remain on friendly terms with the prosecutrix. Appellant's claim of error is without merit.

Apparently for the purpose of corroborating the claim of the prosecutrix that the offense in question had been committed against her, testimony was offered by the people, and received, tending to show that on the 28th of April, 1948, a physician examined her and found that she was at the time pregnant, and that the condition had existed for approximately six months. Further testimony was introduced that, on June 24, 1948, the girl gave birth to a child. Counsel for appellant claims that the introduction of testimony to show pregnancy was prejudicial error. No objection was made to such testimony when it was offered. The omission in this respect is sought to be explained by an affidavit made by counsel representing defendant in the circuit court to the effect that the matter was discussed between counsel and the trial judge in the absence of the jury, and that the judge indicated at the time that if such testimony were offered it would be received.

Whether the failure to interpose timely objections was due to the belief of counsel that they would be overruled, or because of acquiescence in the view of the trial judge as to the competency of such proof, does not appear from the record. In any event we think that the necessity of interposing objections as the basis for a claim of error was not obviated by what occurred in the instant case, and that in consequence counsel for defendant is not now in position to urge that receiving such testimony was prejudicial error. Furthermore, the claim that the proof was not competent is without merit. It was incumbent on the people to establish that an act of sexual intercourse had been committed against the prosecutrix. Testimony by an examining physician may be received for that purpose in a prosecution for statutory rape. People v. Inman, 315 Mich. 456, 24 N.W.2d 176.

Counsel for defendant suggests in his brief that the competency of testimony of the character in question has not been definitely determined by this court in any prior decision involving facts analogous to those in the case at bar. In People v. Stison, 140 Mich. 216, 103 N.W. 542, the defendant was prosecuted for incest. Testimony was offered by the prosecution, and was received showing pregnancy and the birth of a child. Without attempting to lay down any general rule on the matter, the court held that under the situation presented by the record in the case the testimony was competent.

In People v. Brown, 142 Mich. 622, 106 N.W. 149, which was a prosecution for statutory rape, the offense was charged to have been committed on the 15th of May, 1904. The testimony indicated that the act relied on in support of the charge occurred in June, 1904. The prosecutrix reached the age of 16 (the age of consent) on July 15, 1904. Testimony was introduced by the prosecuting attorney, over objections, to show acts of intercourse between Prosecutrix and the defendant after the age of consent was reached. It was shown that a physician examined prosecutrix in May, 1905. His testimony on the trial indicated that he found a condition of pregnancy, the inception of which he fixed as occurring in December, 1904, or January, 1905. Objections to the testimony were based primarily on the claim that it was not competent to show acts of intercourse occurring after the specific act relied on as the basis for conviction. Counsel flr defendant Brown in their brief filed in this court stated in substance that they would have had no objection to testimony of pregnancy resulting from the act of intercourse alleged in the information, and based their argument on the fact that the testimony of the physician indicated clearly that the condition was due to a subsequent act of intercourse occurring after the prosecutrix reached the age of consent. This court held that the testimony as to subsequent acts was not competent, and that the testimony tending to show a condition of pregnancy in May, 1905, was likewise improperly admitted. The conclusion reached with reference to the testimony of the physician must be regarded, we think, as based on the somewhat unusual facts involved in the case. In subsequent decisions of this court testimony of the character in question here, offered and received without objection for the same purpose for which it was introduced in the instant case, was recognized as entitled to consideration. People v. Russell, 241 Mich. 125, 216 N.W. 441; People v. Hallman, 299 Mich. 657, 1 N.W.2d 28.

Numerous decisions in other States support the general proposition that under proper circumstances testimony to show pregnancy in a prosecution for rape is competent. Thus in Woodruff v. State, 72 Neb. 815, 101 N.W. 1114, 1117, it was said: 'An objection is offered because the trial court permitted the prosecutrix to testify tha she became pregnant and that a child was born as the result of the alleged illicit intercourse. Evidence of this character is proper and admissible. It indisputably established one element necessary to be proven by the state; that is, that sexual intercourse had taken place. It was proof of the corpus of the crime, as it were; that is, that the prosecutrix had sustained unlawful relations with some one was by this evidence placed beyond the pale of doubt. It is admissible on the same principle that an expert would be permitted to testify after examination that the girl had surrendered to some one her virginity. By this evidence the controversy was narrowed to the question of the defendant's relation to this positive evidence that a crime had been committed. The time during gestation and of the birth of the child was consistent with the theory of the prosecution as to the time of the commission of the act charged. The child was the legitimate fruit of the illicit sexual intercourse.'

The general rule, supported by citations of cases, is stated in 44 Am.Jur. 942 as follows: 'Evidence of pregnancy is properly admitted in a prosecution for statutory rape, since, as has often been pointed out, pregnancy is evidence of intercourse, and intercourse is one of the constitutive elements of the offense charged.'

Likewise, in Wigmore on Evidence (3d ed.),...