State v. Duncan
| Decision Date | 02 April 1928 |
| Docket Number | 6278. |
| Citation | 266 P. 400,82 Mont. 170 |
| Parties | STATE v. DUNCAN. |
| Court | Montana Supreme Court |
Appeal from District Court, Wheatland County; Wm. L. Ford, Judge.
Jesse Duncan was convicted of rape, and he appeals. Affirmed.
Belden & DeKalb, Merle C. Groene, and Emmet O'Sullivan, all of Lewistown, for appellant.
L. A Foot, Atty. Gen., A. H. Angstman, Asst. Atty. Gen., and Norman R. Barncord, Co. Atty., of Judith Gap, for the State.
Jesse Duncan, a man 25 years of age, was convicted of the crime of rape, alleged to have been committed on July 15, 1927, upon one Anna Williamson, a girl of 17. The jury fixed the punishment at not less than 2 nor more than 4 years' imprisonment. After judgment was entered defendant moved for a new trial, which motion was overruled. He has appealed from the judgment and from the order denying him a new trial.
The undisputed facts established on the trial are as follows: On July 15, 1927, the prosecutrix was living in the home of Al Bouchard, in Harlowton, Wheatland county. The Bouchard family included Bouchard, his wife, his son Elwin and his wife, and a daughter, Freda. The prosecutrix roomed with Freda; she was born July 4, 1910.
The father and brother of the prosecutrix slept at the county jail of which the elder Williamson was the janitor. In the evening of July 15, defendant, with a taxi driver, called for Freda and Anna in a taxicab for the purpose of taking them to a dance at a nearby town, but instead took them to a roadhouse where the party remained for about an hour, drank a small amount of beer, and danced a few times, and then returned to Harlowton before midnight. Defendant and prosecutrix left the taxicab near the Urner rooming house and the latter refused to go home at the solicitation of Freda who was taken directly home by the taxi driver and went to bed.
The rooming house mentioned is on the second floor of a business block. Defendant and the prosecutrix went upstairs in the building, and the girl remained in a bathroom while defendant secured a room. The landlady who showed defendant to his room presumed that he was alone and retired; about 35 minutes thereafter she was awakened by Williamson and his son, who secured the number of defendant's room and proceeded to it, followed by a third man whose identity was not discovered by the landlady. The Williamsons forced their way into the room against the opposition of the defendant; they found the girl's dress on the foot of the bed and the girl under the covers; defendant was either entirely nude, as they testified, or had on B. V. D.'s which were torn off during his attempt to escape from the enraged father according to his version. The father of the girl sought to assault defendant with a pocket knife, but was held by his son and another man until defendant could dress in the hall under the eye of the town marshal, whereupon the son took the girl to the Bouchard home, and thereafter he and the father took her to their ranch about 12 miles from Harlowton.
The girl discussed the occurrence with her father the following day, and it was never thereafter mentioned in conversation between them. On the 17th, at the ranch and in the absence of Williamson and without threats of coercion of any kind, the girl stated to the county attorney and the sheriff that defendant had had sexual intercourse with her in the Urner room. Thereafter the girl was interviewed by the defendant's mother, and on the 18th Elwin Bouchard, his mother, and his sister, Freda, called at the Williamson ranch and took Anna to Harlowton, where, in the presence of defendant's mother and his attorney, she made an affidavit in which she stated that, prior to July 15, she had had sexual intercourse with a number of men, giving their names and approximate dates, and then stated that "the action against Jesse Duncan is being prosecuted without her consent and against her will," that "no cause of action exists against said Jesse Duncan," and that "he has committed no crime or offense against affiant;" that the action should be dismissed as "it has no basis in fact"; and that, if she thereafter testified against the defendant, it would be because of fear of bodily harm at the hands of her father. That portion of the affidavit which refers to Duncan was admitted in evidence and read to the jury.
The disputed facts are substantially as follows: On direct examination, the prosecutrix testified that she met Duncan for the first time when the two men called for her and Freda; that she went to the Urner room on the night of July 15 and there remained for nearly three-quarters of an hour, during which time defendant had sexual intercourse with her twice, with a period of perhaps five minutes intervening. Thereafter the girl testified that, while at the roadhouse, she went with defendant to a barn and there, lying an a dirt floor for a period of three-quarters of an hour, he had intercourse with her two times, with but 15 minutes intervening. The other members of the party denied that they separated during the evening, and the proprietor of the place testified that the barn had a plank floor. In rebuttal, the sheriff and town marshal testified that they visited the place during the trial and that the barn then had a dirt floor.
On cross-examination, prosecutrix was asked if she had not told defendant's mother that her statement to the county officers was not true, and had not made the same admission to the Bouchards while driving in from the ranch; she denied that she had ever made such a statement, but declared that Mrs. Bouchard asked her to go to town and "change her statement," which she did.
Defendant's mother testified that she asked the girl if her statement to the officers was true, and that she looked down, shook her head, and said only, "I am afraid of my dad, I am scared to death of my dad." Elwin Bouchard and Freda testified that she stated on the road in from the ranch that her statement to the officers was not true. Freda Bouchard further testified that when the prosecutrix came to her room after the affair she said, "Jess was not to blame, I went up there."
The father and brother of the girl testified that they went to the Urner rooming house on information received from Elwin Bouchard, who stated to them that he was there at the insistence of his wife. Mrs. Bouchard testified that her husband was at home in bed with her from 9:30 until morning on the night of the 15th, and in this she was corroborated by Bouchard; however, on cross-examination, he admitted that on a night between the 4th of July and the 15th he did go to the jail and advised Williamson that his daughter was out with some one. The question was then put to him, "But you didn't follow him up to the Urner rooming house?" to which he replied, "No, I followed him possibly a block along there and then went home." It is clear that some one advised Williamson of what was going on at the rooming house, and that a third man did go there with the Williamsons; the record discloses no intimation that they had occasion to go there on any other night than the 15th.
The jury was duly instructed and later retired for deliberation; after a period of perhaps 20 hours the jury was returned to court, when the following colloquy was had:
"Court: Gentlement of the jury, the bailiff informs me that you would like to talk with me. What is your desire?
Juror: There is a few things that some of us don't seem to understand. In regard to the birth certificate of Anna Williamson, is that to be accepted in evidence?
Court: The birth certificate, that was excluded as evidence.
Juror: And in the matter of the affidavit of Miss Anna Williamson, is that to be accepted in evidence?
Court: So far as that is concerned, I can't tell you anything about it. You have to determine the evidence for yourselves. I have gone as far as I can at this time; I can't instruct you further orally.
Mr. O' Sullivan: Defendant excepts to the ruling of the court refusing to instruct the jury further."
1. Defendant's assignments numbered 1, 2. and 3 predicate error upon the statement and action of the court above referred to; his counsel assert that the jurors desired information as to whether the affidavit mentioned was received in evidence and should be considered by them; that the court violated the mandatory provisions of section 12012, Revised Codes 1921, in refusing to further instruct the jury, and that thereunder the court may orally instruct the jury.
The state contends that the jurors knew that the affidavit, or a part thereof, had been admitted in evidence; that they did not intimate that they were in doubt as to its contents, but what they wanted to know was whether to accept or reject the statement therein contained as a part of the evidence before them; in other words, that the jury wanted to know the legal effect of this bit of evidence.
In the absence of a waiver by the parties to a criminal prosecution under section 11969, subd. 5, Revised Codes 1921 (formerly section 9271, Rev. Codes 1907), the instructions to the jury must be delivered in writing (State v. Tudor, 47 Mont. 185, 131 P. 632), but this mandatory provision does not extend to directions to the jury as to their conduct in the jury room, the form of the verdict, or like matters ( State v. Lewis, 52 Mont. 495, 159 P. 415). Mere information concerning what took place during the trial, which contains no element of an instruction as to the law, would likewise fall without the provisions of the statute and could likewise be given orally; but when the trial court attempts to instruct the jury on any matter of law without first reducing the matter to writing and then reading it to the jury, reversible error is committed. State v. Fisher, ...
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