People v. Etter

• Decision Date: 27 June 1890
• Citation: 81 Mich. 570,45 N.W. 1109
• Court: Michigan Supreme Court
• Parties: PEOPLE v. ETTER.

45 N.W. 1109

81 Mich. 570

PEOPLE v. ETTER.

Supreme Court of Michigan

June 27, 1890

Appeal from circuit court, Cass county; THOMAS O'HARA, Judge.

Howeli & Carr, for appellant.

F J. Atwell, for the People.

CAHILL J.

The respondent was convicted of the crime of rape, charged to have been committed on a young girl, under the age of 14 years, on July 28, 1888. The principal contest on the trial was over the question of the girl's age; it being conceded that the intercourse was had with her consent, if she was of an age to give legal consent. It was claimed by the prosecution that the girl became 14 years old on the 13th day of October, 1888, whereas it was claimed by the respondent that she was a year older. The only evidence of intercourse prior to October 13, 1888, was given by the girl herself, who testified to two occasions,-one in April, and the other in July previous. The prosecution was allowed to prove, under objection, by the mother of the girl, that she caught respondent in bed with her daughter in her own house on the night of October 15, 1888, two days after the girl was admittedly 14. This evidence should have been excluded. It could have no legitimate tendency to show the previous unlawful intimacy. People v. Clark, 33 Mich. 115. It was admitted by the court on the idea that respondent then admitted the previous intercourse. But it would have been competent to prove respondent's admissions without proving in detail all the circumstances that were allowed to be shown in this case. It is by no means clear that respondent made, or intended to make, any admission of criminal conduct. It is very apparent that the real purpose of the evidence was to get before the jury the fact that respondent had been caught in the act on the 15th of October so that they should infer therefrom the previous intimacy when the girl was under the age of legal consent.

Among the witnesses whose names were indorsed on the information was that of Catherine Blood, the grandmother of the girl, who was admitted to have been present at her birth. The prosecuting attorney rested his case without calling her and, when requested by respondent's counsel to call her declined to do so on the ground that he had learned, from talking with her, that she would dispute the testimony of the other witnesses for the people who had testified to the date of the girl's birth; that he did not propose to call her, or to be bound by...