State v. Apley

• Decision Date: 14 April 1913
• Citation: 141 N.W. 740,25 N.D. 298
• Court: North Dakota Supreme Court

141 N.W. 740

25 N.D. 298

STATE OF NORTH DAKOTA v. EMMET F. APLEY

Supreme Court of North Dakota

April 14, 1913

Rehearing denied May 19, 1913.

From a judgment of the District Court for Stutsman County, Coffey J., defendant appeals.

Reversed.

Judgment set aside, and case remanded.

W. S Lauder and John Knauf, for appellant.

The weight of the testimony in a given case depends quite as much upon the character of the witnesses as upon their number, and upon cross-examination it is competent to go fully into the character, habits, and antecedents of a witness, as bearing upon his credibility. Territory v. O'Hare, 1 N.D. 44, 44 N.W. 1003; State v. Kent (State v Pancoast) 5 N.D. 541, 35 L.R.A. 518, 67 N.W. 1052; State v. Malmberg, 14 N.D. 526, 105 N.W. 614; State v. Rozum, 8 N.D. 557, 80 N.W. 477.

Collateral facts touching the credibility of a witness cannot be shown by the testimony of other witness. They are reachable only through the avenue of liberal cross-examination. Shepard v. Parker, 36 N.Y. 517; State v. Haynes, 7 N.D. 70, 72 N.W. 923, and cases cited.

If a witness admits himself to have been guilty of heinous offenses, the jury would justly give him less credit than if his life and conduct had been pure and upright. Shepard v. Parker, supra; LaBeau v. People, 34 N.Y. 233; Newcomb v. Griswold, 24 N.Y. 298; Real v. People, 42 N.Y. 279; Wilbur v. Flood, 16 Mich. 40, 93 Am. Dec. 203; Foster v. People, 18 Mich. 266; 1 Greenl. Ev. 14th ed. Brown v. Com. 102 Ky. 227, 43 S.W. 214; Neace v. Com. 23 Ky. L. Rep. 125, 62 S.W. 733; Camp v. State, 3 Ga. 417; People v. Evans, 72 Mich. 367, 40 N.W. 473; Brennan v. People, 7 Hun, 171; State v. Long, 93 N.C. 543; State v. Duffey, 128 Mo. 549, 31 S.W. 98; Gillett, Indirect & Collateral Ev. § 91, note on p. 136.

A witness who has been examined upon collateral matters for the purpose of affecting his credibility may not be contradicted by other witnesses, as this would raise a multiplicity of issues and tend to confuse the jury. State v. Haynes, 7 N.D. 70, 72 N.W. 923; State v. Malmberg, 14 N.D. 523, 105 N.W. 614.

In cross-examination there is a great difference in the latitude allowed in the case of a mere witness, and a defendant charged with a serious, specific crime. State v. Hazlet, 16 N.D. 444, 113 N.W. 374; State v. LaMont, 23 S.D. 174, 120 N.W. 1104.

The defendant cannot be prepared to vindicate himself against any charge which may be insinuated in the form of cross-examination. Com. v. Jackson, 132 Mass. 16, 44 Am. Rep. 299, note; State v. Carson, 66 Me. 116, 2 Am. Crim. Rep. 58; People v. Crapo, 76 N.Y. 288, 32 Am. Rep. 302; People v. Brown, 72 N.Y. 571, 28 Am. Rep. 183; Gifford v. People, 87 Ill. 210; Hayward v. People, 96 Ill. 492; Rice, Crim. Ev. 215; Richardson v. Gage, 28 S.D. 390, 133 N.W. 692; Owens v. State, 39 Tex. Crim. App. 391, 46 S.W. 240; Ball v. State, 44 Tex. Crim. Rep. 489, 72 S.W. 384; Dabney v. State, 82 Miss. 252, 33 So. 973.

The general rule is against receiving evidence of another offense. Coleman v. People, 55 N.Y. 81; Shaffner v. Com. 72 Pa. 60, 13 Am. Rep. 649; People v. Molineux, 168 N.Y. 291, 62 L.R.A. 193, 61 N.E. 286; Bishop, New Crim. Proc. § 1120.

It is elementary that where on examination of a witness, a subject is gone into or opened up, the adverse party may, on cross-examination, go fully into it and develop it in all its bearings. People v. Flaherty, 79 Hun, 48, 29 N.Y.S. 641; Taugher v. Northern P. R. Co. 21 N.D. 123, 129 N.W. 747; Parker v. State, 62 Tex. Crim. Rep. 64, 136 S.W. 453.

Specific acts with others than defendant may be shown to rebut corroborating circumstances, as where a physician testified, as in this case, that the hymen was ruptured. 33 Cyc. 1480, 1481, and cases cited; State v. Mobley, 44 Wash. 549, 87 P. 815; State v. Gereke, 74 Kan. 196, 86 P. 160, 87 P. 759; People v. Fong Chung, 5 Cal.App. 587, 91 P. 105; People v. Betsinger, 34 N.Y. S. R. 819, 11 N.Y.S. 916; Shirwin v. People, 69 Ill. 55, 1 Am. Crim. Rep. 650; People v. Flaherty, 79 Hun, 48, 29 N.Y.S. 641; State v. Height, 117 Iowa 650, 59 L.R.A. 437, 94 Am. St. Rep. 323, 91 N.W. 935; Nugent v. State, 18 Ala. 521; Wilson v. State, Tex. Crim. Rep. , 67 S.W. 106; Knowles v. State, 44 Tex. Crim. Rep. 322, 72 S.W. 398; State v. Bebb, 125 Iowa 494, 101 N.W. 189.

The complaint of the prosecutrix made to others as to the acts of the defendant are no part of the res gestae. Greenl. Ev. § 213; State v. Clark, 69 Iowa 294, 28 N.W. 606; State v. Richards, 33 Iowa 420; 33 Cyc. 1463, 1464, and cases cited.

The case of the State v. Werner, 16 N.D. 83, 112 N.W. 60, distinguished. Pleasant v. State, 15 Ark. 624; State v. Langford, 40 Am. St. Rep. 277, and note 282, 45 La.Ann. 1177, 14 So. 181; State v. Jones, 61 Mo. 232; Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N.W. 38; Wood v. State, 46 Neb. 58, 64 N.W. 355; State v. Freeman, 100 N.C. 429, 5 S.E. 921; State v. Campbell, 20 Nev. 122, 17 P. 620; 42 Century Dig. Div. B. § 68 p. 70; State v. Murphy, 17 N.D. 58, 17 L.R.A.(N.S.) 609, 115 N.W. 84, 16 Ann. Cas. 1133; 1 Greenl. Ev. 16th ed. § 110; 1 Rice, Civ. Ev. §§ 212 et seq. Gillett, Indirect & Collateral Ev. pp. 290 et seq. Wharton, Crim. Ev. 8th ed. § 262; Underhill, Crim. Ev. § 93; Lund v. Tyngsborough, 9 Cush. 36; People v. Lane, 100 Cal. 379, 34 P. 856; People v. Tucker, 104 Cal. 440, 38 P. 195; Cole v. State, 125 Ga. 276, 53 S.E. 958; Warrick v. State, 125 Ga. 133, 53 S.E. 1027; Johnson v. State, 129 Wis. 146, 5 L.R.A.(N.S.) 809, 108 N.W. 55, 9 Ann. Cas. 923; State v. Mickler, 73 N.J.L. 513, 64 A. 148; Stevison v. State, 48 Tex. Crim. Rep. 601, 89 S.W. 1072; Tilson v. Terwilliger, 56 N.Y. 273; 2 Jones, Ev. §§ 347, 348, and notes.

If sufficient time intervenes between the act and declarations concerning it, to give opportunity for reflection, the declarations of the prosecutrix made to others are inadmissible. State v. Murphy, 17 N.D. 58, 17 L.R.A.(N.S.) 609, 115 N.W. 84, 16 Ann. Cas. 1133.

While an appellate court will not disturb a judgment for an immaterial error, yet it should appear beyond a doubt that the error complained of did not and could not have prejudiced the rights of the party objecting. Boston & A. R. Co. v. O'Reilly, 158 U.S. 334, 39 L.Ed. 1006, 15 S.Ct. 830; Deery v. Cray, 5 Wall. 795, 18 L.Ed. 653; Norfolk & P. Traction Co. v. Miller, 98 C. C. A. 453, 174 F. 607; Gilmer v. Higley, 110 U.S. 47, 28 L.Ed. 62, 3 S.Ct. 471; Taggart v. Bosch, Cal. , 48 P. 1092; Thomas v. Carey, 26 Colo. 485, 58 P. 1093; Norfolk & W. R. Co. v. Briggs, 103 Va. 105, 48 S.E. 521; Henry v. Colorado Land & Water Co. 10 Colo.App. 14, 51 P. 90; Comaskey v. Northern P. R. Co. 3 N.D. 279, 55 N.W. 732; Moore v. Booker, 4 N.D. 558, 62 N.W. 607; Hegar v. De Groat, 3 N.D. 354, 56 N.W. 150; McKay v. Leonard, 17 Iowa 569; Freeman v. Rankins, 21 Me. 446; Hayne, New Trial, § 287.

Honorable Andrew Miller, Attorney General, Geo. M. McKenna, State's Attorney, and Geo. W. Thorp, and Russell D. Chase, for respondent.

The character of the prosecutrix for chastity may be impeached, but this must be done by general evidence of her reputation, and not by evidence of specific acts of intercourse with others than the defendant. 3 Greenl. Ev. § 214; People v. McLean, 71 Mich. 309, 15 Am. St. Rep. 263, 38 N.W. 917; McCombs v. State, 8 Ohio St. 643; Com. v. Regan, 105 Mass. 593; State v. Hilberg, 22 Utah 27, 61 P. 217 (impeachment for want of chastity must be confined to general reputation for chastity in community); State v. Williamson, 22 Utah 248, 83 Am. St. Rep. 780, 62 P. 1022; State v. Ogden, 39 Ore. 195, 65 P. 449; McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775.

Where the prosecutrix is under age, she cannot be impeached by cross-examination as to her past conduct concerning illicit intercourse. People v. Johnson, 106 Cal. 289, 39 P. 622; People v. Harris, 103 Mich. 473, 61 N.W. 871; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N.W. 862.

Reputation for truth and veracity may be inquired into, the same as of an adult. State v. Smith, 18 S.D. 341, 100 N.W. 740; State v. Stimpson, 78 Vt. 124, 1 L.R.A.(N.S.) 1158, 62 A. 14, 6 Ann. Cas. 639; State v. Rash, 27 S.D. 185, 130 N.W. 92, Ann. Cas. 1913D, 656; State v. Whitesell, 142 Mo. 467, 44 S.W. 332; State v. Hilberg, 22 Utah 27, 61 P. 215; State v. Williamson, 22 Utah 248, 83 Am. St. Rep. 780, 62 P. 1022.

Admissions of prosecutrix are hearsay and inadmissible. State v. Shettleworth, 18 Minn. 208, Gil. 191; Greenl. Ev. §§ 362 & 537; State v. Emeigh, 18 Iowa 122; State v. Yocum, 117 Mo. 622, 23 S.W. 765; State v. Brady, 71 N.J.L. 360, 59 A. 6; State v. Sudduth, 52 S.C. 488, 30 S.E. 408; Brown v. State, 127 Wis. 193, 106 N.W. 536, 7 Ann. Cas. 258; People v. McLean, 71 Mich. 308, 15 Am. St. Rep. 263, 38 N.W. 917; State v. Malmberg, 14 N.D. 523, 105 N.W. 614; State v. Haynes, 7 N.D. 70, 72 N.W. 923; Becker v. Cain, 8 N.D. 615, 80 N.W. 805; 1 Thomp. Trials, Last ed. § 469.

The matter of the extent and nature of the cross-examination is largely in the discretion of the trial court, and depend upon the nature of the evidence introduced and the circumstances of each case. 1 Thomp. Trials, Last ed. §§ 464, 465; State v. Kent (State v. Pancoast) 5 N.D. 516, 35 L.R.A. 518, 67 N.W. 1052; Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. McGahey, 3 N.D. 293, 55 N.W. 753; State v. Ekanger, 8 N.D. 559, 80 N.W. 482; State v. Malmberg, 14 N.D. 523, 105 N.W. 614; Shepard v. Parker, 36 N.Y. 517; La Beau v. People, 34 N.Y. 223; Real v. People, 42 N.Y. 279.

The defendant, by going upon the witness stand and testifying generally to his mode of living, put his general character for his whole life in issue, as to respectability, integrity criminal acts,--sexual inclination,--and...