People v. Elco
| Citation | 91 N.W. 755,131 Mich. 519 |
| Court | Michigan Supreme Court |
| Decision Date | 07 October 1902 |
| Parties | PEOPLE v. ELCO. |
Error to circuit court, Hillsdale county; Guy M. Chester, Judge.
Al Elco was convicted of sexual intercourse with a female under 16 years, and he brings error. Reversed.
Frank M. Hall and Fred O'Melay, for appellant.
William H. Frankhauser, Pros. Atty., for the People.
Respondent was convicted of sexual intercourse with one Pearl Arnold, a female under the age of 16 years.
1. The principal ground of error relied upon for reversal is that there was no competent proof to establish the girl's age. The respondent is the girl's uncle, and was 30 years old. The complaint was not made either by the girl or her mother but by a neighbor. She had been delivered of a child. The girl and her mother were both witnesses hostile to the prosecution, and desired to shield the respondent. Both the girl and her mother, upon the examination, testified that the girl was under 16 years of age at the time of the alleged intercourse. Upon the trial both testified that they were mistaken, and that she was a year older, which made her more than 16 years of age. The girl also denied ever having sexual intercourse with the respondent. Several witnesses testified that the respondent told them that he had 'gotten the girl into trouble; that her mother threatened prosecution; and that the girl was under age.' He did not deny these statements, taking advantage of his constitutional right not to testify. The jury were entitled to consider the statements of the respondent as to her age, and as well her appearance. Com. v. Emmons, 98 Mass. 6; Com. v Phillips, 162 Mass. 504, 39 N.E. 109; People v Justices of Court of Special Sessions of New York County, 10 Hun, 224.
What the respondent meant by using the expression, 'The girl was under age,' was for the jury.
It is impossible to read this record without reaching the conclusion that the girl was infatuated with the respondent, and that she testified falsely for the sole purpose of shielding him. No other conclusion can with reason be reached than that he had sexual intercourse with her during the time alleged in the information. The mother had had several children, and was compelled to change the dates of the births of all of them, from that to which she testified upon the examination, in order to make the age of Pearl above 16. We think there was conflicting evidence in regard to her age, which made it a proper question for the jury.
2. Evidence was permitted tending to show that Pearl and respondent left Michigan and went to Indiana, where her child was born, and to show intimate relations subsequent to the time of the commission of the crime. This testimony was offered, not to establish other and subsequent offenses, but to show his treatment of the girl after the commission of the alleged offense, and after he ascertained that she was with child. This testimony is not within the rule established in People v. Clark, 33 Mich. 112; People v. Etter, 81 Mich. 570, 45 N.W. 1109; and People v. Fowler, 104 Mich. 449, 62 N.W. 572. In these cases the prosecution was permitted to show subsequent acts of sexual intercourse to prove the one charged. This was held improper. This case comes within the rule established in People v. Hubbard, 92 Mich. 326, 52 N.W. 729, People v Craig, 116 Mich. 388, 74 N.W. 528, and Matthews v. Journal Co., 123 Mich. 608, 82 N.W. 243, and cases there cited, in which it was held competent to show the subsequent and intimate friendly relations of the parties. The court very carefully instructed the jury upon this point, in accordance with...
To continue reading
Request your trial