State v. Alvord

• Citation: 47 Idaho 162,272 P. 1010
• Decision Date: 29 December 1928
• Docket Number: 5235
• Parties: STATE, Respondent, v. EDWIN T. ALVORD, Appellant
• Court: United States State Supreme Court of Idaho

272 P. 1010

47 Idaho 162

STATE, Respondent, v. EDWIN T. ALVORD, Appellant

No. 5235

Supreme Court of Idaho

December 29, 1928

CRIMINAL LAW-RAPE-EVIDENCE-RES GESTAE-OTHER TRANSACTIONS-EVIDENCE OF PLAN OR DESIGN - RELEVANCY - WITNESSES-PROSECUTRIX-IMPEACHMENT-OTHER OFFENSES-LEADING QUESTIONS.

1. Inadmissibility of evidential fact for one purpose does not prevent its admissibility for any other purpose otherwise proper, and, in case evidence is relevant and competent, it should be admitted, regardless of incidental effect.

2. In prosecution for rape, evidence that defendant had offered prosecuting witness and others intoxicating liquor shortly before commission of alleged offense was not admissible as res gestae, and must be justified, if at all, by its relevancy.

3. Evidence of plan or design or scheme put into execution is relevant, if it tends by reasonable inference to establish the commission of crime charged.

4. Evidence of acts, the proof of which tends by reasonable inference to establish that they were committed in execution of plan or design which, coupled with other evidence of later execution in consummation of crime charged, makes such evidence relevant.

5. In prosecution for rape, testimony that defendant offered intoxicating liquor to prosecutrix and another shortly before commission of alleged offense held admissible as tending to establish that defendant planned by its use to accomplish his purpose, and offered and gave it in execution of plan to bring about sexual intercourse.

6. In prosecution for rape, testimony that defendant, while alone with prosecutrix immediately before occurrence of alleged act of intercourse, told her that he had "DOCTor instruments," and that, if prosecutrix were going to have a baby, he would treat her, and that he had treated two other girls, held admissible as tending to establish a plan or design and its execution.

7. In prosecution for rape, refusal to allow defendant's counsel to cross-examine prosecutrix about other acts of intercourse, in order to affect her credibility, was not erroneous.

8. In prosecution for rape, permitting prosecuting attorney to ask leading questions of prosecutrix was matter largely in discretion of trial court.

9. Testimony of prosecutrix in prosecution for rape held not as matter of law to be so improbable, unnatural, or unreasonable as to be unworthy of belief.

10. In prosecution for rape, the weight of evidence given by prosecutrix was for jury.

11. In prosecution for rape, the weight of evidence given by state's witness, coupled with the fact that he was himself accused of rape, was for jury.

12. In prosecution for rape, wherein defendant was found guilty of rape though jury were instructed relative to intervening degrees of rape, the refusal of instruction that defendant might be found guilty of simple assault as included in the charge of rape was not reversible error.

13. Refusal of requested instruction relative to disregarding testimony of witness testifying falsely held not erroneous in view of instruction substantially the same as one requested, except as omitting the phrase, "unless corroborated by other credible evidence."

14. That sentence of conviction for rape was excessive does not constitute a ground for motion for new trial.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Defendant appeals from judgment of conviction of rape and order denying motion for new trial. Affirmed.

Judgment and order affirmed.

W. A Ricks, for Appellant.

The general rule is elementary that the appellant cannot be called upon to defend against any accusation other than that charged in the indictment, and that evidence of other crimes is not admissible. (State v. Garney, 45 Idaho 768, 265 P. 668; State v. Haynes, 116 Ore. 635, 242 P. 603; State v. Willson, 113 Ore. 450, 39 A. L. R. 84, 230 P. 810, 233 P. 259; Wooton v. Commonwealth, 200 Ky. 588, 255 S.W. 153; Cox v. State, 165 Ga. 145, 139 S.E. 861; State v. Huntley, 204 Iowa 981, 216 N.W. 67; People v. Gibson, 255 Ill. 302, 99 N.E. 599, 48 L. R. A., N. S., 236.)

The general rule is that, when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon trial, must be excluded. (State v. Garney, supra; State v. Haynes, supra; People v. Gibson, supra.)

The mere proximity of time within which two offenses may be committed does not necessarily make one a part of the other. Immediateness is not the true test. There must be a casual relation or logical and natural connection between the two acts, or they must form parts of but one transaction. (State v. Garney, supra; State v. Haynes, supra; People v. Gibson, supra.)

The testimony about the appellant bringing in the liquor, and that some of the parties drank some of it, and that some of them became intoxicated, was a separate and distinct crime, not connected with the charge of rape, and was testimony of a highly prejudicial character, and tended to convict the defendant, not for rape, but for giving liquor to the parties. (State v. Garney, supra; State v. Haynes, supra; State v. Willson, supra; People v. Gibson, supra; Wooton v. Commonwealth, supra.)

As is usual in rape cases, the all-important question is one of the credibility of the principal parties--the prosecutrix and the defendant. For the purpose of affecting the credibility of the prosecutrix, it is proper to ask her on cross-examination questions the answers to which may tend to degrade, disgrace, or criminate her. There is a wide distinction which affects the general credibility of the prosecutrix and evidence which affects the credibility of a witness' testimony in a specific case. Both are proper subjects for cross-examination. (State v. Apley, 25 N.D. 298, 141 N.W. 740, 48 L. R. A., N. S., 269; 28 R. C. L. 610, sec. 200.

Where the court permits leading questions in a case which does not justify them, the appellate court will grant a new trial. (28 R. C. L. 591, sec. 183; 17 Ann. Cas. 840, note; C. S., sec. 8032.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

Where a party is informed against for one offense and a complete detailed narrative of that offense by the witnesses involves a recital of another offense, it is not error to permit them to complete the detailed narrative of the offense for which the party is indicted, notwithstanding the recital of an offense for which he was not indicted. (Underhill on Crim. Ev., 3d ed., sec. 152; 22 R. C. L. 1204, sec. 39; Johnson v. State (Okla. Cr.), 249 P. 971; Tolbert v. State (Okla. Cr.), 245 P. 659; Reeves v. State (Okla. Cr.), 255 P. 162; People v. Ciulla, 44 Cal.App. 719, 187 P. 46; Thaler v. United States, 261 F. 746; Tinker v. State, 95 Tex. Cr. 143, 253 S.W. 531; Travelstead v. State, 105 Tex. Cr. 101, 287 S.W. 53; People v. Hop Sing, 216 A.D. 404, 215 N.Y.S. 301.)

Evidence in a rape case should be confined to the res gestae of the crime charged. But if the res gestae includes an admission made by defendant to prosecutrix immediately prior to the commission of the crime that he has had intercourse with other girls such admission is properly received as part of the res gestae even though it does not intimate that another crime has been committed. (State v. Bebb, 125 Iowa 494, 101 N.W. 189; People v. Davis, 6 Cal.App. 229, 91 P. 810; State v. Putney, 110 Ore. 634, 224 P. 279; Underhill on Crim. Ev., 3d ed., par. 618.)

In a statutory rape case prosecutrix cannot be impeached as to truth and veracity by evidence that she has had intercourse with men other than appellant since there is no such connection between unchastity and untruthfulness as to permit a woman's chastity to be called into question every time she goes on the witness-stand. (State v. Hammock, 18 Idaho 424, 110 P. 169.)

It is not reversible error on a charge of rape for a court to refuse to give an instruction on simple assault unless there is evidence in the record tending to mitigate the charge from rape to simple assault. (People v. Chavez, 103 Cal. 407, 37 P. 389; People v. Keith, 141 Cal. 686, 75 P. 304; Ross v. State, 16 Wyo. 285, 93 P. 299, 94 P. 217; State v. Sherman, 106 Iowa 684, 77 N.W. 461; 33 Cyc. 1503; State v. Marselle, 43 Wash. 273, 86 P. 586; State v. McPhail, 39 Wash. 199, 81 P. 683; People v. Lopez, 135 Cal. 23, 66 P. 965; Melone v. Commonwealth, 202 Ky. 659, 261 S.W. 17; State v. Hart, 119 Wash. 529, 205 P. 836; State v. Broughton, 154 Minn. 390, 192 N.W. 118.)

TAYLOR, J. Wm. E. Lee, C. J., Budge and Givens, JJ., and Hartson, D. J., concur.

OPINION

TAYLOR, J.

Defendant appeals from a judgment of conviction of rape, and an order denying a motion for new trial. The evidence shows that the prosecutrix, not quite fifteen years of age, went from Rexburg in a car in company with another girl and a young man to the defendant's home, some miles in the country reaching there about 8 o'clock in the evening. There were present another young man and a girl and the defendant. The defendant was fifty-six years of age. These people sat in the kitchen of the house for a few minutes, during which time some records were played on a phonograph. The prosecutrix, over objection, testified that the defendant tried to get her to drink some whiskey, but that she did not take it; that this happened before the playing of the phonograph. This evidence of liquor was objected to, and the motion made to strike it, and admonish the jury "to pay no attention to it, and not to consider it in...