State v. Bowker

Decision Date26 December 1924
PartiesSTATE, Respondent, v. J. O. BOWKER, Appellant
CourtIdaho Supreme Court

STATUTORY RAPE - UNCORROBORATED TESTIMONY OF PROSECUTING WITNESS-CONFLICTING INSTRUCTIONS-WHEN PREJUDICIAL ERROR.

1. While a conviction for the rape of an unmarried female under the age of eighteen may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when her reputation for chastity and truth is unimpeached and the facts and circumstances surrounding the commission of the offense are corroborative of her testimony, and her statements are not contradictory.

2. In a prosecution for statutory rape, where one instruction given by the court tells the jury that the testimony of the prosecuting witness need not be supported by that of another witness or other corroborating circumstances, and the court thereafter instructs that a defendant may be convicted upon the uncorroborated testimony of the prosecutrix only when her character for chastity and truth is unimpeached and where the surrounding circumstances clearly corroborate her statements such instructions are conflicting and irreconcilable and constitute prejudicial error.

3. In a prosecution for statutory rape, where the instructions of a court to a jury are conflicting to such an extent that if the jury followed the first they should convict, but if they followed the second they could not properly convict the defendant of the charge, the giving of such conflicting instructions constitutes prejudicial error.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Prosecution for statutory rape. Judgment of conviction. Reversed and remanded.

Reversed and remanded, with instructions.

Norris & Sutton, George Donart and Morgan & Smith, for Appellant.

Where the testimony of the prosecutrix in a rape case is contradictory and her story as to what occurred at the time and place she asserts the crime was committed is improbable her uncorroborated testimony is not sufficient to justify a verdict of guilty nor to support a judgment of conviction. (33 Cyc. 1491; State v. Baker, 6 Idaho 496, 56 P 81; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Andrus, 29 Idaho 1, 156 P. 421; Morris v. State, 9 Okla. Cr.241, 131 P. 731; Allen v. State, 10 Okla. Cr. 55, 134 P. 91; State v. Hobson (Mo.), 177 S.W. 374; Ex parte Ledington (Okla. Cr.), 192 P. 595; Force v. State, 105 Neb. 175, 179 N.W. 387, and cases therein cited; Kedwell v. United States, 38 D. C. App. 566, at 573; People v. Benson, 6 Cal. 223.)

Instructions numbered 13 and 14, as given, not only do not correctly state the law but they are extremely confusing and must have misled the jury.

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

Instructions 13 and 14, given by the court on its own motion, have been approved by this court in case of State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Short (Ida.), 228 P. 274.

WILLIAM A. LEE, J. Wm. E. Lee, J., MCCARTHY, C. J., concurring. Budge, J., did not sit at the hearing and took no part in the decision.

OPINION

WILLIAM A. LEE, J.

Appellant was charged, under subdivision 1 of C. S., sec. 8262, with what is commonly designated as statutory rape, committed upon the person of Leona Rogers, who at the time of the commission of the alleged offense was seventeen years old. From a judgment of conviction appellant appeals to this court and makes numerous assignments of error, not all of which it will be necessary to consider. The principal assignments relied upon are that the evidence is insufficient to justify the verdict or support the judgment in that the testimony of the prosecutrix is contradictory, she is not corroborated by the testimony of any other witness, the facts and circumstances surrounding the alleged commission of the offense are not corroborative of her testimony; and secondly, that instructions thirteen and fourteen are contradictory, cannot be reconciled, and incorrectly state the law.

The prosecutrix testified that her home was about a mile east of Payette, where she lived with her parents; that she became acquainted with appellant about six weeks before April 18, 1923, the time the offense is alleged to have been committed; that about 4 o'clock in the afternoon of that day she was on her way home and met appellant, who said he would take her there and save her the walk; that she got in appellant's car and they started in the direction of her home, but when they arrived within a block of the place appellant turned the car in another direction and proceeded to the foothills where he stopped and made known his purpose, and told her to "come across" and that he would not take her home until she had done so; that she remonstrated with appellant and that he took hold of her hands and kept fooling with her until he had accomplished an act of intercourse with her, after which he brought her back and let her out of the car near her home. On cross-examination prosecutrix stated that she was very much enraged with appellant for what had taken place, but said that she had made no complaint about the alleged assault until several days thereafter. While her testimony regarding this is contradictory, it may fairly be inferred from her own statements that she refrained from making any complaint until certain of the officials threatened to have her sent to the reform school unless she did make a disclosure of the facts and agree to prosecute appellant. We do not mean to imply that the record does show that the officers made such a threat. Her statement that they had done so was subsequently denied by her. Other witnesses who claim to have heard the conversation say they did not hear the officers make such a threat. She testified that she had gone to Boise during the week and following the alleged commission of the offense, which was on Wednesday, and did not make any statement concerning the alleged assault until the following week, or about the 25th of April, and when asked on cross-examination if it were not a fact that before she made any complaint she had been threatened with a criminal prosecution by the officers, after some hesitation and a second repetition of the question she finally replied, "Yes, sir." On redirect she was asked by the prosecuting attorney what she meant when she testified that either he or the sheriff threatened to prosecute her for a criminal offense at that time, to which she replied, "That time?" and was then asked whether she fully understood the question as to having been threatened and whether they did in fact threaten her, and she stated that she did not fully understand the question, and as to whether the prosecuting attorney made any threat answered, "Not as I remember."

The sheriff testified that he had a conversation with appellant subsequent to the time of the alleged commission of the offense and that appellant admitted he had been out in the hills with the prosecutrix but said he was too drunk to have intercourse with her. The sheriff further stated that he had been out to the place where the prosecutrix stated the act took place and saw marks of the wheels of a car evidently made when the road was muddy.

The mother of the prosecutrix testified that her daughter was seventeen years old.

This is substantially all of the evidence offered by the state in addition to that of the...

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    ...where it is inherently improbable or incredible; or where it is obtained through fear, threats, coercion, or duress, * * *." State v. Bowker, supra. from instances where the testimony of the prosecutrix is obtained through fear, threats, coercion or duress, the law stated in the foregoing c......
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