State v. Brown
| Decision Date | 13 July 1916 |
| Docket Number | 2875 |
| Citation | 48 Utah 279,159 P. 545 |
| Court | Utah Supreme Court |
| Parties | STATE v. BROWN |
Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.
Frank R. Brown was convicted of having carnal knowledge of a female between thirteen and eighteen years of age. He appeals.
REVERSED.
J. E Darmer and S. P. Armstrong, for appellant.
A. R Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson, Asst. Attys. Gen., for the State.
OPINION
The defendant was convicted of the crime of having had carnal knowledge of a female under the age of eighteen years and over the age of thirteen years, which, under our statute, is a felony. He appeals from the judgment.
The first error assigned relates to statements made by the prosecutrix while testifying as a witness for the state. Though it were assumed that the statements were objectionable, yet, no objection or exception having been interposed or taken to the statements, the assignment is not reviewable by us.
At the trial the prosecutrix, a girl of about fourteen years of age, but apparently a well-developed female for that age, testified, among other things, that on the 25th day of January, 1915, she lived in defendant's family, consisting of his wife and a daughter of about the age of the prosecutrix, near Garfield, Salt Lake county; that the defendant kept boarders who roomed and slept in small houses, or so-called shacks, which were located on the same lot and near defendant's dwelling where he and his family lived; that on the day aforesaid a little after four o'clock in the afternoon, after the prosecutrix had returned from school, she went to one of the shacks, the one most distant from the dwelling house, in which there were two rooms in which the boarders roomed and slept in two beds; that she went there to make up the beds and was alone in the shack when the defendant came in and that he then and there had sexual intercourse with her; that she was in the room from twenty minutes to half an hour and the defendant a somewhat shorter time. She also testified, without objection, that the defendant had had sexual intercourse with her on several occasions in the same shack prior to the date aforesaid. She, however, could not state the precise dates on which the prior acts occurred, but fixed them as nearly as she could remember. On cross-examination defendant's counsel insisted that the witness, at the preliminary examination, had fixed at least some of the prior dates with certainty and that she at the trial was changing the dates fixed as aforesaid. The witness admitted that she, on the preliminary hearing, might have given a particular date, but insisted that if she did she did not thereby mean that she could with certainty fix the date or dates on which the prior acts of sexual intercourse took place, and that she gave those dates as nearly as she could remember them. We have carefully read all of the evidence which is preserved in the bill of exceptions, and we feel bound to state that the discrepancies in the testimony of the prosecutrix with respect to times and dates are less than usual in such cases, and that she seemed quite fair in her statements and gave both the state and the defendant her best recollection with regard to the matters she testified to, and especially with regard to the different dates upon which the alleged prior acts of intercourse took place. The act upon which the complaint was predicated she always gave as having occurred on the 25th of January, 1915, and there is no contention to the contrary.
In view of the foregoing statements counsel for the defendant, at the trial, contended, and now insists, that the prosecutrix had made contradictory statements respecting material facts in issue and for that reason they requested the court to charge the jury as follows:
The court refused to give the request and the refusal is assigned as error.
The Attorney General insists, however: (1) That the statements of the prosecutrix are not of that character which would authorize the giving of the foregoing request; and (2) even though it were conceded that the statements were of that character, yet the request was improper, and hence the court committed no error in refusing it.
When all of the testimony of the prosecutrix is considered, as it must be, it must be conceded that there is little, if anything, upon which to base the contention that the statements are contradictory in the sense that that term is usually applied. Assuming, however, that the contention is well founded, the question still remains whether the court erred in refusing to give the request. The request seems to have been taken from the case of Powell v. State, 101 Ga. 9, 29 S.E. 309, 65 Am. St. Rep. 277. It was there held that the trial court committed no error in charging the jury in the language of the request. The Supreme Court of Georgia, however, arrived at such conclusion after a somewhat lengthy review of the Georgia decisions and after a somewhat exhaustive analysis of the instruction. The court accordingly held that while it would be error to instruct the jury that they must not consider the testimony of a witness who, it is shown, has made conflicting statements upon material issues, and that the jury must be left at liberty to give his testimony such weight as in their judgment, upon the whole evidence, it is entitled to, or to disregard it in whole or in part, as in their judgment would be just and right, yet, that the charge in question, when properly construed, was merely to that effect. While a trained lawyer might be able to arrive at such a conclusion after carefully reading the instruction in the light of his experience as a lawyer, and in view of his knowledge of the law, yet it seems to us that the obvious and ordinary meaning of the language as it would likely be applied by laymen is not what the court found it to be. It is true that it is said in the charge that it is for the jury "to say whether or not you will believe the witness sought to be impeached or the witness brought to impeach him, the credibility of all witnesses being for you and your consideration," yet it is also said, "If you believe that any witness has been successfully impeached, why, then it would be your duty to disregard the evidence of such witness." The instruction then concludes with the statement that if the jury "believe that any witness has been successfully impeached in reference to contradictory statements, * * * then you would not be authorized to believe him, unless you find that he has been corroborated." The jury is thus clearly told that in case a witness is impeached it is their duty to disregard his evidence, and, further, if they so find they would not be authorized to believe him, unless corroborated. As we view it, the average layman or juror would construe and apply the language of the instruction thus:
"While I am at liberty to believe either one of the witnesses, if, however, I do believe the witness who testified to the making of the contradictory statements, then it is my duty to disregard the testimony of the witness who made them unless such witness is corroborated by other credible evidence."
We can see no escape from such a conclusion. The cases are quite numerous in which it is held that to charge a jury that it is their duty to disregard the testimony of a witness who, it is shown, has made contradictory statements or who has been otherwise impeached, upon material issues, or to tell them that they cannot consider any of his testimony unless corroborated, constitutes error. In 2 Thompson on Trials (2d Ed.) Sec. 2426, the subject is thoroughly discussed and the author there lays down the doctrine we have just stated. To the same effect are Green v. Cochran, 43 Iowa 544 at 545; Harper v. State, 101 Ind. 109; Addison v. State, 48 Ala. 478; Higgins v. Wren, 79 Minn. 462, 82 N.W. 859. Moreover, upon both reason and principle such must be the law. It is elementary that the credibility of the witnesses and the weight to be given to their testimony is the exclusive province of the jury. This applies to all the witnesses and not only to those against whose statements no objection is made. It would be almost revolutionary to hold as a matter of law that because some witness comes into court and testifies that another witness has made statements in conflict with his present testimony therefore all that the latter witness testified to should be disregarded by the jury. To so hold would be in direct conflict with the doctrine that the credibility of the witnesses and the weight to be given to their testimony and statements is the exclusive province of the jury. The most that courts can do, or ought to do, in that regard, is to give the jury some plain directions to guide them in arriving at a just result. That is best accomplished by admonishing them that if they find...
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