State v. Cooper
| Decision Date | 14 January 1949 |
| Docket Number | 7186 |
| Citation | 114 Utah 531,201 P.2d 764 |
| Court | Utah Supreme Court |
| Parties | STATE v. COOPER |
Appeal from District Court, Fourth District, Utah County; Wm Stanley Dunford, Judge.
Affirmed.
Clair M. Aldrich, of Provo, for appellant.
George S. Ballif, Dist. Atty., of Provo, Grover A Giles, Atty. Gen., and A. John Brennan Asst.Atty. Gen., for respondent.
Wolfe, Justice. Pratt, C. J., and Latimer, J., concur. Wade, Justice, concurs, but expresses no opinion on unnecessary matter discussed. McDonough, Justice, concurs in the resuit.
Appeal by the defendant from a verdict and judgment of guilty of the crime of indecent assault. The offense is defined by Section 103-7-9, U. C. A. 1943, as follows:
"Every person who shall assault a child, whether male or female, under the age of fourteen years, and shall take indecent liberties with or on the person of such child, without committing, intending or attempting to commit the crime of rape, upon such child, with or without the child's consent, is guilty of a felony."
The purported offense was charged in the information to have taken place on or about April 18, 1947, in the automobile of defendant while in the Orem city cemetery, and to have been committed upon the person of Doral Elder, then a child 11 years of age.
Testimony adduced by the State tended to prove that on the afternoon of April 8, 1948, defendant had taken Doral Elder and Ferrell Sorenson, another boy of about the same age, in his automobile to the Orem city cemetery; that after examining certain graves and especially the grave of the defendant's son, the defendant and two boys had climbed back into defendant's car, defendant and Elder into the front seat and Sorenson in the back seat; that thereupon defendant committed an indecent assault upon the Elder boy by manipulating his private parts. Defendant testified in his own behalf, and, of course, denied commission of the act. Other facts may be more conveniently detailed in the discussion of the various points involved.
Defendant's first assignment of error, and the one principally relied upon by him for reversal of the judgment, relates to the admission of certain testimony introduced in evidence on the redirect examination of the witness Gary Wilkinson. On direct examination, Wilkinson testified that he was acquainted with defendant; that some time after the present criminal action against defendant had been initiated, defendant had accosted the witness on a street of Provo; that defendant had requested the witness to step into the entrance to an office building with him; that the defendant asked the witness whether he (the witness) was going on the witness stand, and when the witness answered in the affirmative, the defendant had drawn his pocket knife and opened the blade and again asked the witness if he "was still going to be on the witness stand," and thereupon the witness fled in fear. He further testified that he ran to a nearby drug store and called his mother, who caused defendant to be arrested.
On cross-examination, and apparently for the purpose of showing that the witness had no basis for fearing the defendant, and that defendant's pulling his knife from his pocket was not a threat but merely a nervous habit, counsel for defendant elicited testimony that defendant and the witness had always been good friends, that the defendant had often done favors for the witness, and that the witness had no reason to fear the defendant.
On redirect examination, counsel for the defendant objected to testimony that the defendant had "played nasty" with the witness. The basis of the objection was the rule that ordinarily evidence of the commission of other crimes of a like nature is not admissible to prove or as tending to prove the commission of the crime charged. The prosecuting attorney stated that the evidence was offered for the purpose of rebutting the inference raised by the cross-examination of the witness, i. e. that the witness had no grounds or basis to fear the defendant. The trial judge admitted the testimony only for the limited purpose for which it was offered, i. e. to show that the witness did have a basis to fear defendant, and to rebut the inference raised on cross-examination.
In his brief, defendant has argued that the admission of this testimony was error, on the theory that evidence of the commission of other crimes is not ordinarily admissible to prove the commission of the crime charged. The rule relied upon by defendant is discussed at some length in the recent case of State v. Scott, 111 Utah 9, 175 P. 2d 1016. In that case we traced the history of the rule, particularly in this state, and pointed out that in the earlier Utah cases the rule had been stated as a general exclusionary rule, subject to many exceptions; but in the later cases, and especially State v. Nemier, 106 Utah 307, 148 P. 2d 327, this court had followed the view of the American Law Institute as expressed in the Model Code of Evidence, Rule 311, that "evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible as tending to prove that he committed a crime or civil wrong on another occasion, if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime or civil wrong or to commit crimes or civil wrongs generally." (Italics added.)
The rule as thus stated was unqualifiedly adopted by this court in the Scott case.
The crime here charged is a type of homosexual offense. It is not necessary at this time to determine whether in any or all cases of this sort evidence of other crimes of the same nature should be received. That is a question involving serious complications and many ramifications, and one which does not seem to have often come before the appellate courts of this country or to have received any great amount of attention from the legal text writers. Homosexual practices may result either from congenital homosexuality, psychopathic homosexuality, or excessive sexual vigor expressed in homosexual practices in the absence of opportunity for heterosexual relations. Congenital homosexuals, and to a certain extent, psychopathic homosexuals, may be wholly unresponsible for their homosexual acts. They are motiviated by biological and physiological factors which may be beyond their power to combat or control. And while such persons cannot be left to prey upon society, and particularly upon young children, the wisdom of declaring their conduct to be criminal may be seriously questioned. In the light of advanced biological and medical knowledge, the legislature might well provide for their confinement in sanitaria for necessary treatment. Up to now the legislature has made no distinction between the various classes of offenders of this type, and we have no choice but to accept the legislative mandate. In cases of this sort, whether evidence of other crimes of the same nature should be admitted must depend largely on the medical evidence in each case. In any event, it is a problem which we need not, and in propriety should not, attempt to solve at this time. For an interesting discussion of the medico-legal problems involved, and suggesting some of the difficulties, see Herzog, Medical Jurisprudence, Chapter XXXVIII. See also annotation in 167 A. L. R. 621-623 for a citation and discussion of such few cases as have been decided relative to this question.
As above stated, we are not here concerned with the general question of whether evidence of other similar homosexual offenses should be admissible in cases of this sort. The testimony to which objection was taken was carefully limited in its purpose by the trial judge. The real issue before us is whether the testimony was properly admitted to rebut the inference raised on cross-examination. It involves simply the question of the extent to which counsel may be permitted to go in redirect examination. It is the general rule, of course, that the scope of redirect examination is limited to the field covered in cross-examination. As a general rule any evidence logically tending to rebut the inferences raised on cross-examination is admissible. However, testimony which may have some slight weight or tendency to rebut the inferences raised on cross-examination may not be admitted if it is too remote, or collateral to the principal inquiry, or especially if it is apt to mislead or confuse the jury, or arouse their passions or prejudices. The extent to which redirect examination may be permitted to go rests to a large extent in the sound discretion of the trial court; and unless abuse of discretion can be shown in admitting or excluding testimony, the ruling of the trial court will not be disturbed.
In 20 Am. Jur. 252-3, Evidence, Sec. 263, the rule is stated thus:
See also Smith v. Mine & Smelter Supply Co., 32 Utah 21, 88 P. 683.
There can be little question that the testimony received on redirect examination had some probative value in rebutting the inference raised by cross-examination. The purpose and effect of the direct examination was to show that the defendant had made threats against the witness. By cross-examination the defendant attempted to show that the relationship between defendant and witness was one of wholesome friendship, and that an innocent act on the part of defendant was a result of nervous habit, and was...
To continue reading
Request your trial
-
Caldwell v. State
...Carolina: State v. Pierce, 263 S.C. 23, 207 S.E.2d 414(2).Utah: State v. Waid, 92 Utah 297, 67 P.2d 647(4, 5). Accord: State v. Cooper, 114 Utah 531, 201 P.2d 764, 769(9) (importance of time issue where there is danger of double jeopardy).Washington: State v. King, 50 Wash. 312, 97 P. 247(6......
-
State v. Worthen
...a new trial, newly discovered evidence should clarify a fact that was contested and resolved against the movant, State v. Cooper, 114 Utah 531, 201 P.2d 764 (1949), or be sufficiently persuasive that the result of the trial might be changed, State v. Swain, 541 P.2d 5 (Utah 1975). Generally......
-
State v. Saunders
...4 Utah 2d 52, 54, 286 P.2d 800, 801 (1955); State v. Wellard, 3 Utah 2d 129, 133, 279 P.2d 914, 917 (1955); State v. Cooper, 114 Utah 531, 535-36, 201 P.2d 764, 767 (1949); State v. Scott, 111 Utah 9, 20-22, 175 P.2d 1016, 1021-23 (1947); State v. Nemier, 106 Utah 307, 311-12, 148 P.2d 327,......
-
State v. Fulton, 20191
...579 P.2d 908, 910 (Utah 1978). A greater variance is permissible where time is not a critical issue at trial. State v. Cooper, 114 Utah 531, 540-41, 201 P.2d 764, 769-70 (1949) (ten-day variance permitted where alibi defense not asserted and where no danger of double jeopardy As noted, Fult......