State v. Callahan
| Decision Date | 18 January 1907 |
| Docket Number | Nos. 15,017-(15).,s. 15,017-(15). |
| Citation | 100 Minn. 63 |
| Parties | STATE v. MICHAEL CALLAHAN.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Defendant was convicted in the district court for Itasca county of the crime set forth in the opinion and sentenced to confinement in the state prison at hard labor for thirty months. From the judgment of conviction and sentence, and from an order of Spooner, J., denying a new trial, defendant appealed. Affirmed.
H. B. Fryberger, for appellant.
Edward T. Young, Attorney General, and George H. Spear, County Attorney, for the State.
Defendant was indicted for the crime of rape, and was convicted of assault with intent to commit the same. The evidence contained in the record goes into full details; the acquaintance of the defendant and the prosecutrix; the opportunity for inducing her to proceed alone with him in a boat which defendant was operating on the Mississippi river; the excuses manufactured for prolonging the voyage down the river upon the occasion, running far into the night; and the admissions of defendant as to his conduct and treatment of her while in the boat. The prosecutrix is corroborated by many events which throw much light upon the matter. This consisted of delay in the journey, as evidenced by the time of arrival at the Gary house; the fact that she had been in the river and her clothing wet; the declarations of the prosecutrix on the following morning of what had occurred, and her condition at that time; the evidence of the witnesses who heard screams of a woman and loud talking — the voice of defendant being recognized. From all of the evidence, which is very voluminous, we unhesitatingly come to the conclusion that the jury would have been fully justified in finding the defendant guilty as charged in the indictment, instead of the lesser offense.
During cross-examination of defendant he was asked the following question: "At or about the time specified did you not have a conversation with Mrs. Broleau, in which you told Mrs. Broleau that you would get Mary Kersting out in your boat, and you would take good care that she was alone, or words to that effect?" This was objected to as incompetent, irrelevant, and immaterial, and not proper cross-examination, and relating to a period too remote. The objection was overruled, and the witness answered: "I never remember of having any conversation with Mrs. Broleau in regard to that whatever." Mrs. Broleau was then called as a witness by the state, and testified that defendant stated to her, about two years before, that he would get Mary Kersting out in a boat, and would take good care that she was alone. This question was objected to on the ground that it was incompetent, irrelevant, and immaterial, and, if for the purposes of impeachment, was not the same question as was put to defendant. The objection was overruled, and the witness answered in the affirmative. Practically the same questions were asked of the witness Stroebel, and the same objections entered. Although the period designated was quite remote, that fact alone did not render the evidence improper for the purpose of establishing the foundation for impeachment, or for the purpose of indicating the state of mind of defendant with reference to the prosecutrix, provided the incident referred to was of such a character as to have a natural tendency to reflect his subsequent state of mind. "Previous conduct of defendant tending to show a lascivious disposition on his part toward the prosecutrix is admissible." State v. Crouch, 130 Iowa, 478, 107 N. W. 173; Barnes v. State, 88 Ala. 204, 7 South. 38, 16 Am. St. 48.
The defendant admitted that the prosecutrix was with him in his boat alone, after night, but denied absolutely that any assault was committed. Under such circumstances, where there is a direct conflict of testimony, the trial court may, within reasonable discretion, admit any declarations or matters otherwise collateral which would tend to characterize or corroborate the credibility of either party. Philips v. Mo, 91 Minn. 311, 97 N. W. 969. The defendant had been operating up and down the river as a logger and running his steam launch for two or three years at least. He had been acquainted with the prosecutrix during that period. She was accustomed to go up and down the river; hence there was opportunity for him to have his attention directed to her two years before, and, in the light of subsequent events, it cannot be said that the previous declarations did not have some connection or tendency to characterize his later conduct.
The principal question requiring consideration is this: Was the defendant deprived of the constitutional guaranty of a public trial as a result of the order of the court which cleared the courtroom of all spectators? For a clear understanding of the effect of the order, an examination of the proceedings in that connection is necessary. As is usual in such cases, and perhaps in this case it was called for, the prosecutrix was required to minutely describe how the alleged offense was committed. She had stated in general terms that the defendant had thrown her down in the bottom of the boat and assaulted her; that he had sexual intercourse with her. Evidently her modesty prevented her from speaking in those direct terms readily suggested to the vulgar mind, and her mastery of the language was not sufficient to enable her to avoid vulgar phraseology and at the same time describe the act with legal exactness. She was asked whether defendant introduced any part of his body into hers, and she answered Yes. Q. Did the defendant have sexual intercourse with you at that time? A. Yes, sir. What did he do to you at that time? A. He assaulted me; took advantage of me. The Court: Tell what he did. A. I don't know that I can tell it any plainer than that. Q. I understand you to say, Miss Kersting, that the defendant introduced his organ into yours? A. I said he took advantage of me. I could not fight any longer.
The effort seemed to be to get the girl to describe in detail each particular movement of each party necessary to constitute the act of sexual intercourse. The condition of her underclothing, the marks upon her body, and the extent of her resistance were the subject of long and minute questioning in opposition to the most persistent interruptions and objections, mostly frivolous and uncalled for. Yet, after all this, the county attorney, being fearful that the crime of rape had not been made out, returned to the subject:
Q. When Michael Callahan threw you in the bottom of the boat, as you have testified, and did to you what you have testified he did, you did or did not give your consent? A. No, sir; I did not. Q. Why didn't you resist him further? A. I wasn't able. Q. Why weren't you able? A. I was exhausted and overcome, and all numb from the cold. Q. Why were you exhausted? From what cause? A. From fighting and being in the water so long. * * * Q. You will recall, Miss Kersting, that you stated a while ago that the defendant put a part of his body into yours. You remember that? A. Yes, sir. Q. What part of your body do you refer to, the generative organ or private part? Q. Into what part of your body, Miss Kersting, did the defendant introduce a portion of his? A. The lower part of my body. Q. Can you describe it in any other way? A. I don't know of any other way to describe it.
At this point the prosecuting attorney appears to have rested as to the witness. Whereupon the court remarked: "Under the testimony as it stands I can submit only assault in the second degree." The record here shows a recess of ten minutes. Upon the reassembling of court, Mary Kersting was called to the stand. Whereupon counsel for defendant moved to strike out the question, "Did the defendant have sexual intercourse with you?" upon the ground that it was leading and called for a conclusion. Then follows the order which is the subject of the present discussion.
The Court: Mr. Sheriff, you will rid the courtroom of everybody except officers of the court, counsel, and witnesses, and the defendant.
Counsel for...
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