State v. Borde

• Decision Date: 18 March 1946
• Docket Number: 38064.
• Citation: 25 So.2d 736,209 La. 905
• Court: Louisiana Supreme Court
• Parties: STATE v. BORDE.

25 So.2d 736

209 La. 905

STATE v. BORDE.

No. 38064.

Supreme Court of Louisiana

March 18, 1946

[Copyrighted Material Omitted]l

Appeal from Ninth Judicial District Court, Parish of Rapides; Cleveland Dear, Judge.

John R. Hunter & Son, of Alexandria, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst. District Atty., both of Alexandria, for the State appellee.

FOURNET Justice.

The defendant, Paul Borde, is appealing from his conviction on a charge of aggravated rape and his sentence thereunder to life imprisonment, relying for the reversa thereof on seven bills of exceptions reserved during the trial.

The prosecuting witness, a young woman of approximately 20, lived in Forest Hill, Louisiana, in close proximity to Camp Claiborne, an army camp, where she was employed. On the night of June 6, 1945, she retired about 12:00 or 12:30, after returning from a date with a soldier. She was alone in the house at the time, the young lady with whom she lived being away. Approximately an hour after she retired she was attacked by an unknown assailant, his identity being obscured by the darkness of the room. However, during the terrific struggle that ensued before the assailant accomplished his purpose she was able to determine, and testified accordingly that he was a man of small stature, that he had a moustache, that he had no upper front teeth, that he wore khaki clothes, and that he spoke with a peculiar accent. The defendant in this case was identified by her as her assailant when he was placed in a line behind a screen with 130 other people, all of whom repeated the words spoken to her on the night she was attacked. He is of small stature, has a moustache, no upper front teeth, and speaks with an accent.

From an examination of the record it appears that evidence was improperly admitted in two instances and improperly excluded in a third.

In the first instance the trial judge permitted, over defendant's objection, certain expert medical witnesses who had examined the prosecuting witness shortly after the occurrence to testify as to her prior virginity. (Bill of Exceptions No. 1). This testimony was wholly irrelevant and immaterial, since the defense was not based upon any theory of consent to the act but on an alibi and it could have had no other effect than to confuse and prejudice the jury.

It is the universally recognized rule of evidence that facts surrounding the commission of a crime may always be shown, but evidence as to the chastity of the prosecuting witness in rape cases is never admissible except to impeach her when consent is pleaded as a defense by showing the probability of her consent. As expressed by Wharton in his work on Criminal Law, 'At common law and under statute, in the absence of specific provision to the contrary, the chastity or want of chastity on the part of the female is immaterial in the commission, or the charge of the commission, of the crime of rape; for carnal knowledge of a woman, without her consent and against her will, constitutes rape where she is lewd and immoral and unchaste, just the same as though she were of the most spotless purity and virtue; but on accusation of the commission of the offense against a woman of unchaste or immoral character, her want of chastity may be shown as bearing on the question of consent to the act.' 1 Wharton's Criminal Law 929, Section 696. 'The prior chastity of prosecutrix is presumed in law, in the absence of statutory provisions to the contrary, and an attack upon her reputation in this regard, and her good reputation therefor cannot be shown until attacked; and where there is no doubt that consent was absent and force was used, evidence of the chastity or unchastity of the prosecutrix is inadmissible.' 1 Wharton's Criminal Law 992, Section 732. See, also, Underhill's Criminal Evidence, 4th Edition, 1274, Section 676; Fite v. State, 139 Tex. Cr.R. 392, 140 S.W.2d 848; Wilson v. State, 17 Tex.App. 525, 533; Patterson v. State, 224 Ala. 531, 141 So. 195; Griffin v. State, 155 Ala. 88, 46 So. 481; Rice v. State, 35 Fla. 236, 17 So. 286, 48 Am.St.Rep. 245; Jones v. State, 119 Tex.Cr.R. 525, 46 S.W.2d 308; and Steinke v. State, 33 Tex.Cr.R. 65, 24 S.W. 909, 25 S.W. 287. (Italics ours.)

The second error was made by the trial judge when he permitted a deputy sheriff to testify, over defendant's objection, that as a result of his investigation the defendant was not released (Bill of Exceptions No. 3). Such testimony is immaterial and irrelevant to the issues of the case and could have no other effect than to convey to the jury the witness's belief that the defendant was the guilty party, contrary to our jurisprudence that a witness is never allowed to express an opinion or suspicion as to the guilt or innocence of an accused. State v. Robertson, 111 La. 35, 35 So. 375; State v. Bessa, 115 La. 259, 38 So. 985; State v. Vinzant, 200 La. 301, 7 So.2d 917; 2 Wharton's Criminal Evidence 1658, Sections 944 and 945; Underhill's Criminal Evidence 429, Section 230; and 20 Am.Jur. 633, Section 763.

The trial judge also erred (Bill of Exceptions No. 4) when he refused to permit Crockett Gunter, a peace officer and one of defendant's witnesses, to testify that immediately after the occurrence the prosecuting witness told him she had been ravished by a soldier for the reason that he (the judge) was of the opinion the prosecutrix could not be impeached in this manner since she did not deny making such a statement to Gunter, she having merely stated she would neither admit nor deny making it, for under the express provisions of Article 493 of the Code of Criminal Procedure 'Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.' (Italics ours.)

The counsel arguing the case for the state conceded that the court erred in refusing to admit the testimony of Gunter but contends that the impeachment of the prosecuting witness in this respect is on an irrelevant and immaterial matter and is not prejudicial to the defendant's cause since she did not testify she was assaulted by a soldier or a civilian but merely that her assailant had worn a khaki shirt and that she could not detect any military insignia on his clothing.

This evidence was not only admissible under the plain language of the above quoted article of the Code of Criminal Procedure, but we think that any statement made by the prosecuting witness so soon after the incident that would reflect on the identity of her assailant, when that was the only matter in controversy in the case, was material.

While the trial judge in his per curiam to this bill says the prosecuting witness testified her assailant wore a khaki shirt and that she could not detect any military insignia of any kind on his clothes, we find in the note of evidence attached to this bill that Mr. Gunter testified: 'I asked her if she knew who it was, a soldier or a civilian, and she said it was a soldier and I asked her how did she know it and she said because he had on khaki clothes all the way round.' When further interrogated by him as to whether it could have been a divilian he testified she said: 'Well it could have...