State v. Brewer

• Decision Date: 07 January 1921
• Citation: 31 Del. 363,114 A. 604
• Court: Court of General Sessions of Delaware
• Parties: STATE v. GEORGE S. BREWER

114 A. 604

31 Del. 363

STATE v. GEORGE S. BREWER

Court of General Sessions of Delaware, New Castle County

January 7, 1921

Court of General Sessions for New Castle County, January Term 1921.

INDICTMENT No. 23, January Term, 1921.

George S. Brewer was indicted for assault with intent to commit rape. At the trial, after the evidence was in, a mistrial was declared, and the case continued until the next term. Contempt proceedings followed. On second trial verdict--guilty of assault.

Evidence was introduced by the state to show that one C., the prosecuting witness, 8 years old, while waiting at the corner of Fourth and West streets in the city of Wilmington at 2 o'clock in the afternoon of December 10, 1920, for a street car to take her to her home from school, was approached by the accused, who asked her if she would take a prescription to the drug store for him, to which she replied that she would; that the accused thereupon took her by the hand, and took her to an apartment house, about four squares away; that, upon reaching the apartments, they proceeded to the top floor, where the accused tried to open a door leading to the roof, but, finding the door locked, took the girl to the basement of the building; that when they reached the basement, the accused picked up a rag bag and said it contained a doll, but, saying he was unable to find the doll he offered to give the girl five cents, which she refused to take, that she thereupon began to cry, when a man entered the basement, whom she told that she was lost, and who let her out of the building; that she then boarded the car and went to her home, where she reported the matter to her parents.

Tenants in the apartment house testified to seeing the accused, with the child in his company, in the building at the time alleged.

The mother of the prosecuting witness, after testifying that the girl was later than usual in reaching home from school on the afternoon that the offense was alleged to have been committed, was asked:

"What if anything, did she state to you then with regard to the matter about which she has testified?"

Mr. Knowles objected, on the ground that the prosecuting witness having testified, it was presumed that she had told all her story, and that an answer to the present question would be in the nature of self-serving testimony. The state contended, in reply, that it is always competent to establish that a complaint had been made immediately following the occurence, in order to corroborate the probability of the story of the prosecuting witness. Objection overruled.

"A. Well, when she came in, she said she was kidnapped. Q. Then, what else, if anything, did she say? A. That was all she complained, only she told me the whole story the same as Anna told you, as soon as she came in the house."

Mr. Knowles objected, and moved that the last answer be stricken out, as it was self-serving testimony.

Verdict--guilty of assault.

Sylvester D. Townsend, Jr., Atty.-Gen., Aaron Finger and Clarence A. Southerland, Deputy Attys.-Gen., for State.

William W. Knowles for accused.

CONRAD and HEISEL, J. J., sitting.

OPINION

HEISEL, J.

Mr. Southerland, we think that you can prove by this witness what you have proved by her--that the little girl complained after she came home of having been taken away with some one, and stated to her practically what she stated on the witness stand. We think that you cannot repeat that. We will admit the answer that is in.

L., a girl 16 years of age, called on behalf of the state, testified that one evening, about 8 or 9 months prior to the bringing of this charge, the accused approached her on the street, at the same time pulling his hat down and his collar up, and taking something white from his pocket. Mr. Knowles objected to the admission of testimony of this witness, as it is introduced as a similar offense, and antedates and is not in any way connected with the charge in this case, and, therefore, unless the state shows that it was a special scheme, plan or design connecting it with this particular case, this testimony is not admissible. Effler v. State, 4 Boyce 62, 85 A. 731.

Mr. Southerland: We offer this testimony under the exception to the general rule providing that similar acts constituting distinct offenses are not admissible. When the intent with which the accused did a certain act becomes material to the case at issue, it seems to me that it is necessary to show with what intent he took this little girl to this particular apartment. This evidence is offered for the purpose of showing intent. By this witness' testimony we intend to prove an act of indecent nature. If the accused had been in the habit of accosting young girls on the street for an improper purpose, that would be admissible as showing intent. 4 Chamb. Mod. Law of Ev. p. 4463.

Mr. Finger: A sufficient answer to the authority cited by counsel for the accused is that it has no application to this case, or to cases of this sort. The defendant in that case was charged with obtaining money under false pretences. We are not trying to prove by this witness, or by the witnesses who will testify similarly, that Mr. Brewer committed this act. All we intend to prove is the intent with which he committed the act, if he did commit it. The jury may infer what his intent was. We are only trying to prove one element of the offense charged, namely, the question of intent, from facts and circumstances, and that is the only way in which the intent that is in a man's mind can be proven. State v. Johnson, 133 Iowa 38, 110 N.W. 170; Grabowski v. State, 126 Wis. 447, 105 N.W. 805, 807; Williams v. State, 8 Hum. 593.

HEISEL, J. The court feel, in regard to the witness now on the stand, that the facts proposed to be proved by her, for the purpose of showing intent, are not sufficiently similar to the charge in the indictment as to allow proof of those circumstances, either under the general rule, or the exception.

T., a girl 8 years of age, called by the state, upon showing by her answers to questions asked her by the court that she did not comprehend the meaning of an oath, was objected to by Mr. Knowles, as not having qualified to testify.

Mr. Finger: Where a child is too young to appreciate the nature and meaning of an oath, and too young to have an oath administered, it seems to me that the rule is--and I always understood it be to a uniform rule--to admit the testimony of that child, without administering the oath, for what it is worth to the jury. Chamb. Mod. Law of Ev. 271.

HEISEL J. We feel that we should not adopt that rule, certainly not without more consideration than we are able to give at this time.

When the state rested, counsel for the accused moved the court for binding instructions on the ground that the state had failed to prove an assault. State v. Donovan, 5 Boyce 40, 90 A. 220.

In reply, it was contended that the mere laying of hands on another person is unlawful and constitutes an assault, and that the state having shown that the accused took the prosecuting witness by the hand when going to the apartment house, an assault had been proven; and that the intent with which the accused took the child to said apartment is solely a question of fact for the jury to decide.

HEISEL, J. Gentlemen, after a careful consideration of the evidence, we are of the opinion the motion for binding instructions should be denied, and the whole case submitted to the jury for their determination upon the evidence.

The defense was an alibi. Evidence was also introduced to show a good reputation for the accused for morality and decency. The state then introduced evidence to show that the reputation of the accused for morality and decency was bad.

When about to adjourn the jury was instructed by the court that if any person other than a member of the jury should talk to any one of them about the case, or should talk about the case in their presence for the purpose of their hearing what was said, it would be their duty to report the matter to the court. Subsequently, when the court reconvened, one of the jurors, John S. Hamilton, informed the court that he had been approached since the adjournment by Walter Sillitoe, as follows:

"He asked me what disposition had been made of the case. I said, 'We were discharged until Monday morning.' 'Now,' I said, 'don't talk to me about this.' I was afraid he would say something; and he said, 'No, but I wouldn't believe what those cops said.' He said, 'I wouldn't believe the evidence of those cops;' and I left him, and I said, 'I will have to report you,' or words to that effect."

After receiving this information, the court in chambers examined, under oath, all the other jurors impaneled in the case to ascertain whether or not any of them had been approached, to which inquiry each answered in the negative.

Thereupon, after the return of the court to the courtroom:

Mr. Townsend: If the court please, in ...