State v. Farmer

• Decision Date: 22 October 1921
• Parties: STATE, Appellant, v. A. M. FARMER, Respondent
• Court: Idaho Supreme Court

201 P. 33

34 Idaho 370

STATE, Appellant, v. A. M. FARMER, Respondent

Supreme Court of Idaho

October 22, 1921

STATUTORY RAPE-IMPEACHMENT OF WITNESS-EVIDENCE OF PARTICULAR ACTS-DISCRETION OF COURT ON MOTION FOR NEW TRIAL.

1. C S., secs. 8038 and 8039, prescribe the character of evidence and the method to be followed in impeaching a witness, and in order to discredit a witness in this manner the requirements of the statute must be conformed to.

2. In a prosecution for the crime of rape of a female under the age of consent, evidence of particular acts of unchastity on the part of the prosecutrix, sought to be introduced for the purpose of discrediting and impeaching her, is not admissible.

3. The granting or refusing to grant a new trial rests largely in the discretion of a trial court, and in the absence of a clear abuse of such discretion an order granting a new trial will not be set aside on appeal.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. F. J. Cowen, Judge.

Respondent was convicted of statutory rape. Order granting a new trial affirmed.

Affirmed.

Roy L Black, Attorney General, and James L. Boone, Assistant, for Appellant.

Evidence offered for the purpose of discrediting a prosecutrix to show acts of unchastity is not admissible. (State v. Henderson, 19 Idaho 524, 114 P. 30; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Lancaster, 10 Idaho 410, 78 P. 1081.)

Where there is substantial evidence to support the verdict of conviction the trial court commits error in granting a new trial. (People v. Mallicoat, 27 Cal.App. 355, 149 P. 1000; 16 C. J. 1119, par. 2620.)

G. F. Hansbrough, John W. Jones and Thomas & Anderson, for Respondent.

In a prosecution for statutory rape, where it is shown by the prosecution that a child was born to the prosecutrix and prosecutrix swears she never had sexual intercourse with any person other than the defendant, the defendant may introduce proof of familiarity and sexual intercourse of the prosecutrix with other persons, and it is error for the court to exclude such proof. (People v. Currie, 14 Cal.App. 67, 111 P. 108; People v. Davenport, 13 Cal.App. 632, 110 P. 318; People v. Kilfoil, 27 Cal.App. 29, 148 P. 812; Eckhart v. Peterson, 94 Wash. 379, 162 P. 551; State v. McCool, 53 Wash. 486, 132 Am. St. 1089, 102 P. 422; State v. Bebb, 125 Iowa 494, 101 N.W. 189; State v. Height, 117 Iowa 650, 94 Am. St. 335, 91 N.W. 935, 59 L. R. A. 437; People v. Flaherty, 79 Hun, 48, 29 N.Y.S. 643; People v. Betsinger, 58 Hun, 606, 11 N.Y.S. 916; State v. Apley, 25 N.D. 298, 141 N.W. 740, 48 L. R. A., N. S., 269; Bader v. State, 57 Tex. Crim. 293, 122 S.W. 555; 23 Am. & Eng. Ency. of Law, 2d ed. 872; State v. Henderson, 19 Idaho 524, 114 P. 30.)

The granting or refusal to grant a new trial is largely in the discretion of the trial court, and its decision is final. (People v. Ah Hop, 1 Idaho 698-703.)

BUDGE, J. Rice, C. J., and Dunn and Lee, JJ., concur, McCarthy, J., concurs in the conclusion.

OPINION

BUDGE, J.

Respondent was convicted of the crime commonly designated as statutory rape. This appeal is by the state from an order granting a new trial.

From the record it appears, inter alia, that the prosecutrix was a young girl, fourteen years of age; that she lived with her parents at Blackfoot, Bingham County, Idaho; that respondent was her uncle by marriage; that this uncle did janitor work in the land office and a Mr. Jones' office in Blackfoot, Idaho; that on the morning of July 2, 1916, the prosecutrix accompanied respondent to the offices hereinbefore mentioned; that the assault is alleged to have been committed on the second day of July, 1916, in the land office; that a child was born to the prosecutrix as a result of said assault on the twenty-fourth day of March, 1917; that on the sixth day of May, 1918, upon application of the respondent, a new trial was granted. On the twenty-ninth day of June, 1918, counsel for the state petitioned the court for an order specifying the grounds for the granting of the new trial, and on the same day the court made a supplemental order, setting forth the reasons for the granting of said application, which are briefly stated as follows: That the court erred in excluding certain offers of evidence made on behalf of the respondent to the effect that during the month of June, 1916, between the fifteenth and twenty-ninth days of said month, respondent saw the prosecuting witness and one Jess Jones in a compromising position in the home of the prosecutrix; that during the month of June, 1916, respondent had a conversation with the prosecutrix with reference to her improper relations with Jones, in which conversation the prosecuting witness stated that she had had improper, illicit relations with said Jones; that respondent offered to prove further by his wife, Harriet Farmer, that during the spring and summer of 1916 the prosecutrix and one of her brothers slept together in the same bed and room; second, that the evidence was insufficient to support the verdict of the jury.

It is the contention of the state that the court erred in granting respondent's application for a new trial, for the reason that error cannot be predicated upon the exclusion of evidence tending to show...