State v. Dowell

Decision Date03 April 1929
Docket Number5186
Citation276 P. 39,47 Idaho 457
PartiesSTATE, Respondent, v. STEVEN DOWELL, Appellant
CourtIdaho Supreme Court

RAPE-OTHER OFFENSES-CONFESSION-ADMISSION OF-PRIOR LOOSE CONDUCT-EVIDENCE.

1. In prosecution for rape, the admission of evidence, showing improper conduct and undue familiarity with a girl other than prosecutrix, in the presence of prosecutrix, held not erroneous, the two events being connected, in that one concerned the commission of an offense with defendant, and the other, conduct of similar character in presence of prosecutrix.

2. In prosecution for rape, evidence, tending to show that prosecutrix and her companions had begged or stolen money from men other than defendant, and had danced for money before drunken men, held properly excluded as immaterial.

3. Evidence of prior loose conduct, as tending to show consent is immaterial in prosecution for statutory rape.

4. Evidence of prior loose conduct of prosecutrix, in prosecution for statutory rape, was inadmissible as affecting credibility.

5. In prosecution for statutory rape, exclusion of evidence showing that pair of shoes belonging to prosecutrix and found in defendant's room had been stolen, held not prejudicial to defendant.

6. Allowance or rejection of questions to test witnesses' understanding of the import of an oath is within the discretion of the trial court.

7. Appellate court must assume, in the absence of a showing of flagrant error, that trial court was satisfied that witness was sufficiently aware of the solemnity of an oath.

8. Evidence, relating to events taking place after arrest of defendant, charged with rape, during preliminary examination of defendant and prosecutrix and her companions by prosecuting attorney and police officers, held immaterial unless showing that effort was made to coerce witnesses and offered to establish coercion.

9. Whether confession, made by defendant to officers at time of his arrest, had been made voluntarily, was a question directed primarily to discretion of trial court.

10. Instructions, which were argumentative and unduly pointed out and emphasized certain features of evidence, were properly refused.

11. In prosecution for rape, the refusal of instruction, to effect that evidence of good character is positive evidence and may of itself by creation of reasonable doubt produce an acquittal, held not erroneous, though there was no other instruction given with particular reference to character evidence.

12. Evidence of good character should be considered by the jury not solely by itself, but in connection with all the evidence in the case.

13. Where an erroneous instruction has been requested, failure of trial court to give proper instruction on his own motion is not error.

14. Where requested instruction covering issues raised by character evidence is erroneous, it is not prejudicial error for trial court to fail to give a correct one on such point, since character evidence ordinarily is not sufficiently vital to defense so as to require instruction thereon in accordance with C. S., sec. 8972.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Appellant was convicted of attempt to commit rape. Affirmed.

Affirmed.

Fisher & Coffin, for Appellant.

In criminal trials, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by Const., art. 1, sec. 13, commanding that no person shall "be compelled in any criminal case to be a witness against himself." (Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.)

It really seems out of place to have to take up so much space discussing foreign cases on this rule of law which is already so long and so firmly established in this state by the early case of State v. Anthony, 6 Idaho 383, 55 P. 884, in which it was held that misconduct toward a second girl cannot be received in evidence on the trial of a man for rape, by the case of State v. Blank, 33 Idaho 730, 197 P. 821, in which it was held that when a man is on trial for one crime, testimony of the commission of another crime cannot be received in evidence against him, and by the very recent case of State v. Garney, 45 Idaho 768, 265 P. 668.

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

In a statutory rape case evidence that appellant gave the prosecutrix money or presents prior to the commission of the crime is immaterial. (People v. Edwards, 139 Cal. 527, 73 P. 416.)

In a statutory rape case evidence that persons other than appellant gave the prosecutrix money or presents prior to the commission of the crime is immaterial. (People v. Edwards, supra.)

In rape cases or cases of assault with intent to commit rape evidence of prior misconduct with a child other than the prosecutrix, but in the presence of the prosecutrix is admissible for the purpose of showing scheme, plan, design, knowledge, motive and intent to commit the act charged against appellant in the information. (Proper v. State, 85 Wis. 615, 55 N.W. 1035; Underhill on Crim. Evidence, 3d ed., sec. 154; Webb v. State, 80 Tex. Cr. 1, 187 S.W. 485; Owens v. State, 39 Tex. Cr. 391, 46 S.W. 240.)

A voluntary confession, freely made and without promises of immunity is admissible. (State v. Jeanoes, 36 Idaho 810, 213 P. 1017; State v. Nolan, 31 Idaho 71, 169 P. 295; State v. Andreason, 44 Idaho 396, 257 P. 370.)

Whether or not a confession is voluntary is primarily for determination by the trial court. (State v. Andreason, supra.)

GIVENS, J. Budge, C. J., and Wm. E. Lee, J., concur.

OPINION

GIVENS, J.

For reversal of conviction for attempt to commit rape, appellant, charged with rape, assigns some fifty-four errors which may be considered under combined groups as we proceed.

Defendant, an elderly man, at least permitted, if he did not encourage the visits in his rooms in a business block in Boise where he resided, working therein as janitor or fireman, of several young girls, aged from eleven to fifteen, among them the prosecutrix. Prior to his residence in the business block he had rooms at his daughter's in Boise where he became acquainted with the girls, the family of the prosecutrix being adjoining neighbors. The suspicions of the police being aroused by the noises in his room in the evenings, which could be heard from the street, they raided it and found there three of the girls at about 11 o'clock at night. His detention and arrest on the charge filed followed.

The first error assigned is the admission of evidence showing improper conduct and undue familiarity with a girl other than the prosecutrix, in the presence of the prosecutrix. Defendant relies on the general rule as announced in State v. Garney, 45 Idaho 768, 265 P. 668, and State v. Larsen, 42 Idaho 517, 246 P. 313; and as to the particular point on People v. Gibson, 255 Ill. 302, 99 N.E. 599, 48 L. R. A., N. S., 236. It will be noted that in State v. Garney, and State v. Larsen, supra, the evidence complained of was not of acts in the presence of the prosecutrix, and the court in both cases emphasized that the incident "was not connected in the slightest degree" with the crime charged; was "wholly independent and unrelated"; that "there must be a causal relation or logical connection between the two acts," that is, the offense charged and the evidence complained of.

People v. Gibson, supra, wherein the facts were similar to those in the case at bar except that the two acts therein took place on the same occasion whereas here they did not, is greatly weakened, if not entirely overruled on this point, by the attempted distinguishment in People v. Pargone, 327 Ill. 463, 158 N.E. 716, both cases by the same court.

The defendant claimed the visits of these girls were innocent and that nothing improper ever took place; that while they played and fooled around, all was innocent fun. While no conspiracy, as such, was charged, it was competent for the state to prove that the meetings, visits and association of defendant and these girls were not innocent. The two events were connected because one concerned the commission of an offense with defendant, the other conduct of similar character in her presence, and showed the familiarity of defendant with these girls on continuing occasions. The language in State v. Hammock, 18 Idaho 424, 110 P. 169, is pertinent:

"The evidence as to the commission by the defendant of other like crimes was not inadmissible, as it occurred in this case. This evidence developed while the state was proving the statements and declarations made by Mrs. Hammock with reference to this specific crime, and the conduct and habit of the defendant in the accomplishment of the general purpose of gratifying his lust on this and other girls, and to the furtherance of which purpose and design Mrs. Hammock seems to have lent her aid and assistance. Any evidence of other crimes which developed was so intimately and inseparably connected with the circumstances of this specific offense as to render it admissible as a part of the common criminal design, all of which was necessarily admissible in order to get a clear understanding of the situation of the parties and the probable truth or falsity of this charge."

Herein there is evidence that defendant had, or at least attempted to have, intercourse with each girl in the presence of the other. The facts in State v. Shtemme, 133 Minn. 184, 158 N.W. 48, are quite similar to the facts herein and the reasoning cogent and conclusive and supported by the authorities therein cited. Speaking of another offense committed with another girl in the presence of the prosecutrix, the court said:

"It is true the state did not need...

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