State v. Elsen
| Decision Date | 18 December 1947 |
| Docket Number | 7364 |
| Citation | 68 Idaho 50,187 P.2d 976 |
| Parties | STATE v. ELSEN |
| Court | Idaho Supreme Court |
Appeal from District Court, Third Judicial District; Ada County Charles E. Winstead, Judge.
Reversed and remanded with directions.
Frank F. Kibler and C. S. Beebe, both of Nampa, for appellant.
Attempt to commit rape is an offense necessarily included in the crime of rape and should have been instructed upon particularly where the defendant was convicted of the lowest offense which the court permitted the jury to consider. Sec 17-305 I.C.A. 1932; Sec. 17-301 I.C.A. 1932; State v. Alvord, 47 Idaho 162, 178, 272 P. 1010; State v. Johnson, 54 Idaho 431, 32 P.2d 1023; State v. Garney, 45 Idaho 768, 265 P. 668, 669; State v. Thomas, 47 Idaho 760, 278 P. 773.
Simple assault is an included offense in rape, and when requested the court must instruct on it, especially where the evidence tends to mitigate the charges from rape to simple assault. State v. Alvord, 47 Idaho 162, 178, 272 P. 1010; State v. Garney, 45 Idaho 768, 265 P. 668; Maddox v. State, 36 Okl.Cr. 381, 254 P. 753; 44 Am.Jur. (Rape) 980, Par. 124.
In a statutory rape case where the testimony of the prosecutrix is contradictory, impeached, and her reputation for truth and veracity is impeached by competent persons, and the defendant denies the entire story of the prosecutrix, the defendant being corroborated in some essential details, the testimony of a prosecutrix, standing alone, is not sufficient to warrant a conviction. State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Anderson, 6 Idaho 706, 59 P. 180.
Opportunity to commit rape does not constitute the corroboration required by law. A conviction upon uncorroborated testimony, aided only by evidence of opportunity, is not sufficient in law, and will be reversed. This rule is applicable in statutory rape cases. State v. Jones, 62 Idaho 552, 113 P.2d 1106; State v. Bowker, 40 Idaho 74, 76, 79, 231 P. 706; State v. Short, 39 Idaho 446, 450, 454, 228 P. 274.
Robert Ailshie, Atty. Gen., and James W. Blaine, Pros. Atty., of Boise, for respondent.
The competency of a witness is to be determined by the trial court in his discretion and when the record of testimony itself discloses competency, the opposing party has no ground for complaint. I.C.A., Sec. 16-202, Par. 1; State v. Cosler, 39 Idaho 519, 528-529, 228 P. 277; State v. Simes, 12 Idaho 310, 85 P. 914, 9 Ann.Cas. 1216; State v. Dowell, 47 Idaho 457, 463, 276 P. 39, 68 A.L.R. 1061; People v. Collins, 5 Cal. 654, 91 P. 158.
The jury are the exclusive judges of all questions of fact and of all questions of the credibility of witnesses. Carscallen v. Coeur d'Alene, etc., Co., 15 Idaho 444, 452, 98 P. 622, 16 Ann.Cas. 544; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791; Gordon v. Sunshine Mining Co., 43 Idaho 439, 252 P. 870; Webster v. McCullough, 45 Idaho 604, 264 P. 384.
Appellant, aged 59 years, was charged with statutory rape alleged to have been committed February 23, 1946, upon a female child, aged 12 years. Trial by jury resulted in a verdict of guilty of assault with intent to commit rape. This appeal is from the judgment of conviction and an order denying motion for new trial.
Appellant's principal assignment of error attacks the sufficiency of the evidence upon the ground of lack of corroboration. In an early case, State v. Anderson, 6 Idaho 706, 59 P. 180, 181, this court laid down the rule that: "* * * a defendant may be convicted of the crime of rape upon the uncorroborated testimony of the prosecutrix; but this is only so when the character of the prosecutrix for chastity, as well as for truth, is unimpeached, and where the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix."
This rule has been consistently reiterated in State v. Short, 39 Idaho 446, 228 P. 274; State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Hines, 43 Idaho 713, 254 P. 217; State v. Smith, 46 Idaho 8, 265 P. 666; State v. Mason, 41 Idaho 506, 239 P. 733; State v. Jones, 62 Idaho 552, 113 P.2d 1106.
From some of these cases we give the following applicable quotations:
"* * * a person may be convicted of rape upon the testimony of the prosecutrix where there is no direct evidence corroborating her testimony only when her reputation for truth and chastity are unimpeached and the circumstances surrounding the commission of the offense are clearly corroborative of her statements. * * *" State v. Bowker, supra [40 Idaho 74, 231 P. 707].
"* * * The law is jealous of the rights and liberties of persons, and it has said that one may be convicted of the crime of rape upon the uncorroborated testimony of the prosecutrix only when 'the character of the prosecutrix for chastity, as well as for truth, is unimpeached, and where the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix.' * * *" State v. Short, supra [39 Idaho 446, 228 P. 277].
"* * * all the decisions of this court demand, in such case, in addition to an unimpeached reputation for truth and chastity, that the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix." State v. Hines, supra [43 Idaho 713, 254 P. 218].
"We think what is meant by the rule 'the facts and circumstances surrounding the commission of the offense are corroboration and not contradictory of the statements of the prosecutrix' is that they must not only support the testimony of the prosecutrix that her person has been violated, but should also be of such a character as to make it appear probable that the accused committed the offense. * * *" State v. Mason, supra [41 Idaho 506, 239 P. 734].
"* * * The uncorroborated testimony of the prosecutrix is generally considered insufficient to sustain a conviction where it is inconsistent with the admitted facts of the case; where it contains numerous and serious contradictions; where it is inherently improbable or incredible; or where it is obtained through fear, threats, coercion, or duress, * * *." State v. Bowker, supra.
Aside from instances where the testimony of the prosecutrix is obtained through fear, threats, coercion or duress, the law stated in the foregoing cases may be summarized to this effect: If the character or reputation of the prosecutrix for truth and chastity is unimpeached, and her testimony is not contradictory nor inconsistent with the admitted facts of the case, and is not inherently improbable nor incredible, there can be either direct evidence corroborating her testimony, or evidence of surrounding circumstances clearly corroborating her statements. Either will suffice. If, however, her character or reputation for truth and chastity, or either, is impeached, or her testimony is contradictory or is inconsistent with the admitted facts of the case, or is inherently improbable or incredible, then there must be direct evidence corroborating her testimony.
In State v. Jones, 62 Idaho 552, 113 P.2d 1106, this court impliedly, if not expressly, recognized and held that to sustain a conviction of assault with intent to commit rape rendered in a prosecution for statutory rape, the same legal requirements as to corroboration necessary to sustain a conviction for rape, must be met. In other words, the rules hereinabove laid down apply regardless of whether the conviction is for rape or assault with intent to commit rape.
In the case at bar, the character of the prosecutrix for chastity was brought into question and impeached by her own testimony, in which she told without objection of having numerous acts of sexual intercourse with two other men, as well as with appellant. In addition, her reputation for truth was attacked by several witnesses for the defense. Therefore, this case requires evidence other than the testimony of the prosecutrix which in and of itself, and without the aid of her testimony, tends to support her testimony that the offense was committed, and which makes it appear probable that the accused was the perpetrator.
No hard and fast rule can be laid down on the subject of corroboration. Each case must depend upon its own merits and surrounding circumstances. State v. Bowker, 40 Idaho 74, 231 P. 706.
On the night in question, according to the testimony of the prosecutrix, she and appellant were going from Nampa over Highway 30 to the Beacon Inn located in Elmore County on said highway; that before reaching the Beacon Inn, appellant turned and drove the car off down a side road for a ways where they stopped and appellant had sexual intercourse with her on the back seat of said car, and that immediately after the act was completed they proceeded on to the Beacon Inn. Appellant denied ever being off the main highway or stopping anywhere thereon any time on the trip from Nampa to the Beacon Inn, or on the return to Nampa. He also denied ever having had sexual intercourse with the prosecutrix at any time. Three witnesses testified to seeing the prosecutrix and appellant at the Beacon Inn that night.
Facts and circumstances showing that the parties have been together under conditions that make it possible for the commission of the offense, without showing other facts and circumstances that tend to support the testimony of the prosecutrix, is not the corroboration required under our rule. State v. Mason, 41 Idaho 506, 239 P. 733.
In State v. Bowker, 40 Idaho 74, 231 P. 706, 708, a statutory rape case where the prosecutrix testified that ...
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