People v. Marrs
| Decision Date | 04 December 1900 |
| Citation | 84 N.W. 284,125 Mich. 376 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. MARRS. |
Exceptions from circuit court, Cass county; Harsen D. Smith, Judge.
Frank Marrs, under an information charging rape, was convicted of assault with intent to commit the crime, and brings exceptions. Reversed.
Horace M. Oren, Atty. Gen., and Cassius M. Eby Pros. Atty., for the people.
Charles E. Sweet, for defendant.
1. The refusal to continue the case over the term is assigned as error. The alleged crime was committed on the 19th day of August, 1899. Complaint was made upon the 28th day of August examination had on the 5th day of September, and respondent bound over to the circuit court for trial. Seven witnesses were indorsed upon the information,--the complaining witness her father, mother, and sister two physicians, and a Mrs Kibler. Mrs. Kibler was called to testify to the mental condition of the prosecutrix. She gave no other testimony. Respondent was not arraigned on the first day of the term, but was arraigned upon the day the case was tried, and just as it was called for trial. There had been an understanding between the prosecuting attorney and counsel for respondent that the case should be tried upon that day. Counsel did not ask to have the prisoner arraigned before, so that they might know who the witnesses were; neither did they ask the prosecuting attorney for the names of the witnesses. They had evidently made preparations for the trial; for, on answer to such inquiry by the court, the attorney for respondent said that some of their witnesses were present. The sole ground upon which the application for continuance was based was that there was names upon the information which counsel had not anticipated would be there, and that they had not known who the witnesses would be, except those that were mentioned in the testimony taken upon the examination. The testimony of the prosecutrix upon on the examination is in the record. Whether that was the sole testimony produced, the record does not show. In her testimony she mentions Mrs. Somers (the woman with whom she was working as a domestic at the time), Dr. McCutcheon, and her mother.
No affidavits for a continuance were presented, nor did counsel ask time to file any. We think the question of a continuance was addressed to the sound discretion of the court, with which we will not interfere. All the testimony is printed in the record, and a careful examination fails to convince us that respondent was prejudiced by the speedy trial.
2. Counsel allege as error that the court refused to direct a verdict for the respondent. The evidence on the part of the people tended to show that the prosecutrix was 18 years old, and mentally and physically weak; that she had never before kept company with young men; that respondent had met her but once before; that he came that night under a promise to take her to her father's home; that she had a bundle done up to take home with her; that defendant told her that he could not take her home that night, but would take her out riding that evening, around the town, but instead drove a long way out of the city, into the country, and assaulted her in the buggy; that she made such resistance as she could, but finally became exhausted, when he accomplished his object. He testified that he took her out riding a week before, and took improper liberties with her then, and sought to have intercourse with her, but she refused. These statements are denied by her. He then testified that the act of intercourse was entirely voluntary upon her part. It is unnecessary to state further the disgusting details. It is not at all surprising that a jury would place but little confidence in the testimony of the respondent, whose own testimony showed him to have no regard for the honor or virtue of woman. We think the case was one for the jury.
3. It was competent for the prosecution to show the mental and physical condition of the prosecutrix, as bearing upon the extent of the resistance the law required her to make.
4. The prosecutrix's home was about 10 miles from the house of Mrs. Somers, for whom she worked. She did not return to Mrs. Somers' the night of the assault until very late, and the family had retired. She made no complaint to Mrs. Somers. Her sister Maud came to see her the following Thursday. To her she told what had occurred. Her mother came the next day, and she made complaint to her, and to her father the following Saturday. She made these complaints immediately upon seeing these members of her own family. It is a strong circumstance against a woman that she made no immediate complaint. It was competent for the people to show when she did make complaint, and the reason why she had not made it before. It was for the jury to consider this evidence in determining what credit they would give to her story. Turner v. People, 33 Mich. 363, 383; Same v. Gage, 62 Mich. 271, 28 N.W. 835; Same v. Ezzo, 104 Mich. 341, 62 N.W. 407; Same v. Bernor, 115 Mich. 692, 74 N.W. 184; Underh. Cr. Ev. � 409.
5. The witnesses were allowed to detail the statements made by the prosecutrix to them in regard to the commission of the offense. It is the well-established rule that the people may show when, where, and to whom the prosecutrix made complaint. The details of her statement are not admissible, except as they are brought out on cross-examination. Underh. Cr. Ev. � 409, and authorities there cited. If the statements are so intimately connected with the time and place of the crime as to be a part of the res gestae, they are then admissible. The only other exception to the rule is in the case where the victim is a girl of tender years. People v Gage, supra; Hannon v. State, 70 Wis. 448, 36 N.W. 1. The complaint by the prosecutrix in this case was too remote to form a part of the res gestae. Neither did she come within the other exception to the rule. She was not of such weak mind as to bring the case without the rule. It was...
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