State v. Dorathy

• Decision Date: 13 January 1934
• Citation: 170 A. 506
• Parties: STATE v. DORATHY.
• Court: Maine Supreme Court

170 A. 506

STATE

v. DORATHY.

Supreme Judicial Court of Maine.

Jan. 13, 1934.

Appeal and Exceptions from Superior Court, Somerset County.

Henry Dorathy was convicted of taking indecent liberties with a female person under the age of sixteen years, and he appeals and brings exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Clayton E. Eames, Co. Atty., of Skowhegan, for the State.

F. Harold Dubord, of Waterville, for defendant.

BARNES, Justice.

The respondent was tried and convicted, on an indictment under section 6 of chapter 135, R. S., for taking indecent liberties with a female person under the age of sixteen years.

During the trial, the prosecutrix, in cross-examination, was asked whether, at about the time when respondent is charged with having committed the offense set out in the indictment, she did something naughty with a boy of the village; and whether she had told her mother anything about him. On objection the court excluded these questions, and exception was noted.

The record then shows the following:

"Q. Do you know a boy named Raymond Collins?

"A. No, Sir.

"Mr. Eames: I object.

"Mr. Dubord: Q. You say you don't know a boy by the' name of Raymond Collins?

"The Court: I shall have to exclude that as the case now stands."

To this ruling the second exception was noted.

A nurse having supervision of the children in the local schools was introduced as a witness for the respondent and asked whether the prosecutrix said anything to her to the effect that boys had infected her with gonorrhea.

She was not allowed to answer the question, and the third exception was noted.

The nurse was then asked whether she was "familiar with an investigation in connection with" prosecutrix and a boy of the town. This question was excluded, and the fourth exception noted.

The nurse was asked if she had any talk with the prosecutrix concerning whether or not she acquired venereal disease from or gave it to a local boy, and whether she had any talk with the prosecutrix concerning her actions, with a young man named, at or about the same time she accused respondent of committing the crime.

The exclusion of these questions gave rise to the fifth exception. Another exception, taken at the trial, was waived.

The prosecutrix was a girl, eight years old at the time of the trial.

She was examined by the presiding justice, in the presence of counsel for both sides, and later presented as a witness.

The questions that resulted in the first and second exceptions were asked as affecting the credibility of the witness. The nature and extent of cross-examinations of a child of tender years is left to the discretion of the court.

The credibility to which the child is entitled is for the jury.

Should contradiction or apparent misunderstanding arise, or discrepancies appear, by reason of testimony of others, respondent's counsel might well ask the privilege of making searching examination of a child of eight.

At the stage to which the trial had advanced when these questions were asked, the respondent was not hurt by their rejection.

The court excluded them, "as the case now stands," and properly.

The state rested after the production of the prosecutrix, and the respondent introduced testimony that on the last day of September, 1932, respondent showed no symptoms of gonorrhea; and that after the middle of that month the prosecutrix was suffering from that disease.

After verdict of guilty, motion for a new trial was presented to the court, alleging as grounds therefor that the verdict was against the law, evidence, and the weight of evidence, and that the state did not prove that the respondent was twenty-one years of age or more when the crime was committed.

This motion was denied, and appeal taken.

The appeal was argued on the issue of evidence of the respondent's age.

Not failing to note that no witness was asked the age of the respondent, and that the best practice would be to put into the written record direct evidence thereof, it remains for this court to say that we find evidence that justified the decision of the jury.

That evidence is in the record of the court proceedings, and we cannot say, after the jury has passed upon the weight of the evidence, that the evidence was so slight the respondent should be discharged.

In arguing his motion for a new trial respondent stresses the claim that there was no evidence that he was twenty-one years or more of age when the offense was committed, and if admissible evidence thereon be found urges the court to rule that all the admissible evidence on the issue of respondent's age at that time be held insufficient to prove beyond reasonable doubt this material issue.

The right of a jury in a criminal case to determine a person's age by inspection or observation has been decided in many of our states, with some diversity as to conclusions.

Some few hold that the jury may not determine one's age by inspection or observation where attention has not been called to the fact that such person was on inspection for that purpose.

A small class hold that one's appearance can never be taken into consideration by the jury, the reason advanced being that such evidence cannot be preserved for review.

We find, however, a very respectable collection of authorities which hold that one's personal appearance may be observed by the jury, in connection with other evidence or standing alone, for the purpose of determining his or her age.

The gravity of the hazard the respondent at the bar faces is fully appreciated by the court, and it is borne in mind that he "shall not be compelled to furnish or give evidence against himself."

He was presented for a felony. So he was required to be present in the courtroom, before the jury which was to try the state's case against him was impaneled, and in the presence of court and jury throughout the trial. We take judicial notice that when the trial was at its beginning respondent was informed, by statement of the court, through its clerk, that certain persons were about to be qualified to try the case; that if he were to object to any persons called, he must do so before they were sworn.

And the inference is unavoidable that every alert and intelligent juror sworn then must have seen respondent, whom probably to know aright as to age was but to see.

We take judicial notice that after the jurors were sworn, the respondent, if physically able to rise and stand, did so while to him and to the jury was read the indictment, which charges that at the time of commission of the alleged felony respondent was seventy-four years old.

It is in the record, sufficiently for purposes of review, that the jurors saw the respondent, on the day of trial.

Later in the record we find that while the little girl was being examined, she was asked, "Do you know that man who sits down there in that chair there" (indicating respondent)?

She answered, "Yes, Sir."

Then followed: "Q. What is his name? A. Henry Dorathy."

So that again each juror had his attention directed to the respondent. It may be argued that no juror can be allowed to review in the conference room the concept formed if he saw with his eyes a man of more than twenty-one years, or an infant in his minority.

The answer which banishes such a claim is that men and women, of intelligence sufficient to serve as jurors, have been drawing conclusions as to age, as a matter of everyday experience, from the appearance of people with whom they come in contact; and they are not required to consider that they have no evidence of the age of a respondent in a prosecution for a felony because there is no verbal or written testimony of age.

Such conclusion is as inescapable as would be the conclusion that a party in court had lost an arm, if he stood forth to the view shorn of such member.

There is force to the claim that respondent was not compelled to produce evidence against himself.

He must, however, present himself before court and jury, to secure acquittal. This he may do voluntarily, but whether voluntarily as a witness, or by force of his compelled attendance, as here, he inevitably reveals that he is a person, a male perhaps. He reveals his race, color, and, we hold, somewhat as to his age.

The preponderance toward this view of the authorities consulted has influence with us.

In a civil action, where contract was disaffirmed, Iowa Code (Code 1897, § 3190) reading, "no contract can be thus disaffirmed in Cases where, on account of the minor's own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reason to believe him capable of contracting," and where the defendant was a witness, held, "certainly his appearance was a proper matter for the jury to consider in determining whether Armstrong, in acting for the bank, had good reason for supposing him of age." First National Bank of Titonka v. Casey, 158 Iowa, 349, 138 N. W. 897, 899.

Where the statute makes it a crime for any one knowingly to suffer any girl under twenty-one years of age on his premises for prostitution, the court allowed the jury to determine the question whether respondent knew the girl was under the age of twenty-one years, from her personal appearance, or from view only. On exceptions the judgment of the lower court was affirmed. Hermann v. State, 73 Wis. 248, 41 N. W. 171, 9 Am. St. Rep. 789.

Soo Hoo Hong, a would-be Immigrant, claimed to be under twenty-one years of age.

On appeal, in habeas corpus proceedings the court say: "The board of inquiry, in considering the testimony, had the right to take into consideration the appearance of the applicant, and, being satisfied by his appearance that he was well over 21 years old, they denied him admission." Held: "The order is affirmed." United States ex rel. Soo Hoo Hong v. Tod, Commissioner of Immigration (C. C. A.) 290 F. 689, 696.

In a prosecution...