People v. Loudenslager

• Decision Date: 18 May 1950
• Docket Number: No. 62,62
• Citation: People v. Loudenslager, 327 Mich. 718, 42 N.W.2d 834 (Mich. 1950)
• Parties: PEOPLE v. LOUDENSLAGER.
• Court: Michigan Supreme Court

Page 834

42 N.W.2d 834

327 Mich. 718

PEOPLE v. LOUDENSLAGER.

No. 62.

Supreme Court of Michigan.

May 18, 1950.

Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, Lansing, Alba F. Wert, Prosecuting Attorney, St. Johns, for plaintiff-appellee.

Paul Watzel, Lansing (Seymour H. Person, Lansing, of counsel), for defendant and appellant.

Before the Entire Bench.

CARR, Justice.

Defendant was tried before a jury in circuit court on a charge of rape, and was convicted. The information in the case set forth a violation of section 520 of the Penal Code, P.A.1931, No. 328, C.L.1948, § 750.520, Stat.Ann. § 28.788. It alleged that the offense was committed at the township of DeWitt, Clinton county, on the 31st of March, 1948, on a young woman 22 years of age, hereinafter referred to as the prosecutrix.

On the trial of the case it was the claim of the people that on the morning of the day referred to, defendant, a man 36 years of age, was driving his automobile in a northerly direction on Pine street in the city of Lansing, that he overtook the prosecutrix who was walking towards her rooming place several blocks away, that it was raining at the time, that defendant stopped and asked prosecutrix to ride with him, and that she accepted his invitation. Prosecutrix informed defendant where she wished to stop, but he drove past the place and continued on a course that took the parties out of the city and into Clinton county where the alleged offense was committed. Thereafter prosecutrix was returned to her rooming place in Lansing, where she immediately made complaint to friends. When she left the automobile she obtained the license number.

The Michigan State Police and the sheriff's department of Ingham county were notified of the occurrence and made an investigation which resulted in the arrest and prosecution of defendant. In the course of such investigation it was learned that the license plate bearing the number obtained by prosecutrix had been issued to defendant. Prosecutrix was shown photographs of several possible suspects, including defendant, and identified the photograph of defendant as that of her assailant. Defendant denied his guilt, and in advance of trial gave notice of an alibi, stating therein his claim as to where he was at the time of the commission of the alleged offense. Testimony in support of such claim was introduced in his behalf at the trial.

In her testimony prosecutrix positively identified defendant, and stated the details of the alleged offense. She was subjected to a somewhat extended cross-examination. It was her claim in substance that she resisted her assailant to the utmost of her strength, that her resistance continued throughout the entire attack, and was overcome by physical force and by fear. At the conclusion of the people's case a motion for a directed verdict was made on the ground that the testimony of the prosecutrix was insufficient to establish that the crime charged had been committed. The motion was denied. When the proofs were closed the motion was renewed, the further ground being asserted that the testimony offered in defandant's behalf in support of his claim of alibi was sufficient to raise a reasonable doubt as a matter of law. This motion was also denied, as was a subsequent motion for a new trial. On appeal defendant contends that such denials were erroneous.

In submitting the case to the jury the trial judge charged that defendant could not be convicted unless the jury was satisfied beyond a reasonable doubt that the crime charged was accomplished by force and against the will of the prosecutrix, that there was the utmost reluctance or resistance on her part, or that her will was overcome by fear of the defendant or the consequences of her refusal to accede to his wishes. Prosecutrix testified that defendant placed his arm around her caught her right wrist in his hand, and pressed her left arm against her side in such manner that she was unable to extricate it. She stated further that she resisted the assault to the utmost of her strength, that she tried to push defendant away from her, that she continued such resistance during the time of the commission of the alleged offense, and that she pleaded with defendant to desist. She also testified that: 'He said something to the effect that if I wasn't quiet he would put me in the back seat and really get rough, and I was so scared I didn't know what he would do. His face looked mad. I was afraid because he said he would get rough with me.' A further recital of the testimony of prosecutrix is unnecessary. Considered in its entirety it was sufficient to support the finding of the jury that the crime charged was committed beyond a reasonable doubt. People v. Geddes, 301 Mich. 258, 3 N.W.2d 266; People v. Myers, 306 Mich. 100, 10 N.W.2d 323.

The testimony introduced in support of defendant's claim of alibi was not sufficient to create a reasonable doubt as a matter of law. Whether it did so in fact was for the jury to determine. As before noted, prosecutrix positively identified defendant as her assailant. It was within the province of the jury to believe her testimony rather than that of defendant and his witnesses. A similar question arose in People v. Petrosky, 286 Mich. 397, 282 N.W. 191, 192, and the following language from the opinion is applicable here: 'The jury was not bound to believe the witnesses who testified in favor of defendant's defense of alibi, as there was testimony to show the contrary. State v. St. Clair, 139 Wash. 428, 247 P. 461; and a jury may believe one witness as against many. Baugh v. State, 89 Ind.App. 283, 166 N.E. 264. It is the jury's province to determine the credibility of all of the witnesses, including those whose testimony tends to prove an alibi. People v. Costello, 320 Ill. 79, 150 N.E. 712. Where the testimony presents fair issues of fact for the jury and would have justified a verdict either of guilty or not guilty, the verdict is not against the weight of the evidence. People v. Pratt, 251 Mich. 243, 231 N.W. 564. The weight and credibility of the testimony of these various witnesses was for the jury, and its determination cannot be said to be against the overwhelming weight or preponderance of the evidence.'

Defendant further complains that the trial court erred in defining the elements of the crime of rape. The claim is not tenable. An examination of the charge as given indicates that the issues involved in the case were clearly, fairly and fully submitted to the jury. The criticism is principally directed to the reference by the court to the necessity for finding, beyond a reasonable doubt, that the resistance of the prosecutrix was overcome by force or by fear. It is insisted in effect that the testimony was not sufficient to support a conclusion that prosecutrix was put in fear by defendant's conduct, appearance, or statements. Under the record, however, the matter was one for the determination of the jury. While the court did not give defendant's request in precisely the form submitted, it was covered in such manner as to properly submit the issue to the jury.

A somewhat similar situation was involved in Strang v. People, 24 Mich. 1. It was there said:

'The evidence being all in, the circuit judge was requested to charge the jury that they must be satisfied that the connection was had by force, against the will of the prosecutrix, and that there was the utmost reluctance and resistance on her part, and that if they entertained a reasonable doubt of such reluctance and resistance, it was their duty to acquit the defendant. This request was modified by the circuit judge and given to the jury in the following form: 'The jury must be satisfied that the connection was had by force and against the will of the prosecutrix, and that there was the utmost reluctance and resistance on her part, or that her will was overcome by fear of the defendant; and if they entertained a reasonable doubt of such reluctance and resistance, it is their duty to acquit the defendant of rape.'

'The court would have been in error if the instruction asked for had been given. The theory of the prosecution was that the prosecutrix was forced to submit to the defendant's embraces by the terror of his threats, which was so extreme as to preclude resistance. The instruction requested would have put the case to the jury precisely as if no such threats had been made; and if accepted and acted upon by them, would have compelled an acquittal, even though the evidence for the people was fully believed. Had no putting in fear been sworn to, such a charge might...