State v. Flitton

• Decision Date: 24 October 1932
• Docket Number: 5879
• Parties: STATE, Respondent, v. WILLIAM VERNON FLITTON, Appellant
• Court: Idaho Supreme Court

15 P.2d 397

52 Idaho 374

STATE, Respondent, v. WILLIAM VERNON FLITTON, Appellant

No. 5879

Supreme Court of Idaho

October 24, 1932

CRIMINAL LAW-RAPE-ASSAULT-EVIDENCE-CORROBORATION.

1. In prosecution for assault with intent to rape, question of defendant's guilt held for jury.

2. In prosecution for assault with intent to rape, corroboration of prosecutrix's testimony, and not of her acts, is all that is required.

3. In prosecution for assault with intent to rape, court's admonition to prosecutor not to hurry prosecutrix on stand held not error as creating impression witness was telling truth.

4. In prosecution for assault with intent to rape, evidence whether prosecutrix two days before alleged offense had accompanied defendant to place of alleged offense and been served with beer held admissible.

5. Court's admonition for jury to disregard remarks between counsel relative to defense counsel's alleged reprehensible attitude toward prosecutrix held to safeguard rights of defendant in prosecution for assault with intent to rape.

6. That prosecutor questioned defendant as to attempt to settle prosecution without producing rebuttal testimony held not reviewable, where record did not show appellant brought matter to trial court's attention by proper motion during trial.

7. Medical testimony held not indispensable to corroborate prosecutrix as to fact of rape.

8. In prosecution for assault with intent to rape, question whether defendant practiced taking young girls to his room held not error, where prosecutor withdrew question and court admonished jury to disregard.

9. Prosecutor's improper remarks are generally rendered ineffective by prompt withdrawal thereof.

10. Error in prosecutor's statement that defense witness had threatened to "shoot" defendant because of his conduct with witness' sister held cured, where prosecutor retracted the word "shoot" to accord with what record actually showed.

11. In prosecution for assault with intent to rape, wherein defense was that prosecutrix's uncle framed prosecution to extort money from defendant, error in prosecutor's statement that uncle knew defendant had no money, held immaterial where evidence showed crime had been committed.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

William Vernon Flitton was convicted of the crime of assault with intent to commit rape. Affirmed.

Affirmed.

Geo. W Edgington, for Appellant.

Where the testimony of the prosecutrix in a rape case is contradictory, and her story as to what occurred at the time and place she asserts the crime was committed is improbable unless clearly corroborated, her testimony is not sufficient to justify a verdict of guilty nor to support a judgment of conviction. (33 Cyc. 1491; State v. Baker, 6 Idaho 496, 56 P. 81; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Clark, 27 Idaho 48, 72, 146 P. 1107.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

The testimony of the prosecutrix must be clearly corroborated by other facts and circumstances. (State v. Short, 39 Idaho 446, 455, 228 P. 274; State v. Mason, 41 Idaho 506, 239 P. 733; State v. Hines, 43 Idaho 713, 254 P. 217; State v. Smith, 46 Idaho 8, 265 P. 666.)

Whether the prosecutrix is clearly corroborated is a matter for the jury, and unless the reviewing court can say the evidence is not clearly corroborative, the judgment will not be reversed. (State v. Hines, supra.)

LEE, C. J. Budge, Givens, Varian and Leeper, JJ., concur.

OPINION

LEE, C. J.

Appellant, Flitton, was charged with the crime of statutory rape, alleged to have been committed in Madison county, October 28, 1931, upon the person of the prosecutrix, Alice T., then and there a girl of seventeen. According to the state's evidence, on the evening of the day mentioned, appellant, a married man of 38 years, residing with his family of a wife and five children in St. Anthony, drove down in company with prosecutrix to Rexburg, some eleven or more miles distant from St. Anthony, stopping at the home of a Mrs. A., the general reputation of whose place for "orderliness" was bad. Beer was served them several times by Mrs. A. After its consumption, prosecutrix went to the bathroom and returning through a hallway encountered appellant, who "grabbed" her and "pulled" her into an adjoining bedroom, there forcing her to sit down upon the bed beside him and asking her "to give in to him." Prosecutrix became frightened and tried to get away, but defendant held her down: she was "too dizzy or anything to hardly do anything"; and he "put his hand" over her mouth so she "couldn't scream." Carnal intercourse followed. After a trial at which appellant denied the alleged crime or any approach thereto, the jury returned a verdict of guilty of assault with intent to commit rape; and from the consequent judgment comes this appeal.

The sufficiency of the evidence is attacked for the reason that the testimony of prosecutrix touching the crime charged is uncorroborated, "most contradictory" and the truth of the same "inherently improbable." That it is inherently improbable, we cannot agree. Contradictory in one vital respect it surely is, prosecutrix's admitted denial to her uncle that the act complained of ever happened. In many details, she was flatly contradicted; in others, she was corroborated by divers witnesses including the appellant himself. He admitted going with her to Mrs. A.'s and there drinking beer the Sunday prior to October 28th; he admitted he took her there the evening of the 28th, though denying all service of beer; he admitted she came to his room with Vivian A., and discussed her being in trouble over seeming pregnancy, denying, however, that she accused him of being the author of it. Prosecutrix swore that she told him that he had "got" her into trouble, but that he denied he had so done and said, "I can take you to any doctor and prove that you are not in trouble." Appellant testified he asked her: "Why don't you go see a doctor about it? To recite further contradictions would serve no purpose, as the jurors were the sole judges of the credibility of each witness: and evidently believed the state's story in preference to that of the defense. (Gordon v. Sunshine Min. Co., 43 Idaho 439, 252 P. 870; Webster v. McCullough, 45 Idaho 604, 264 P. 384; State v. Alvord, 47 Idaho 162, 177, 272 P. 1010.) Corroboration of prosecutrix's testimony and not her acts is all that is required. (State v. Thomas, 47 Idaho 760, 765, 278 P. 773.)

With respect to prosecutrix on the stand, the trial court admonished the prosecutor: "If it appears necessary, you need not hurry her so much; give her a little time; she will get along all right." This, it is urged, gave the jury the impression that the witness "was telling or would tell the truth." The suggestion made direct to counsel and not to the jury can be deemed none other than an instruction as to the manner of examination: it will not be considered as having influenced the jury's verdict. (People v. Mayes, 113 Cal. 618, 45 P. 860.)

Appellant complains that the prosecution was permitted over his objection to inquire of the complaining witness, if a few days before the alleged rape she had not accompanied a party of friends, including appellant, to the home of Mrs. A. and been served with beer there. As contended by the state, this evidence was admissible, in that it tended not only to show an intimate relationship between appellant and prosecutrix, but that his taking her to a place of known ill repute where intoxicating liquors could be obtained indicated a harbored design ultimately to get her drink-befuddled and, while in such condition, know her sexually. As was said in State v. Collins, 88 Mont. 514, 73 A. L. R. 861, 294 P. 957, 961, where an analogous situation arose, "The materiality of the testimony is too plain for argument."

Fault is found with the prosecutor's statement in the presence of the jury: "The attitude of counsel for the defense, your Honor, toward this witness is extremely reprehensible. He has got a mere child here, and he tries to browbeat her and frighten her into making false answers." Immediately, defense counsel objected to the remark, characterizing it as prejudicial and reversible error, and further declaring: "I have tried my best to be courteous to this girl; upon cross-examination, your Honor, I have been as polite as a man could be." Whereupon, the court announced: "I don't think the criticism is justified by the circumstances," and addressed the panel as follows: "I will ask the jury to disregard these remarks between counsel: they have nothing to do with the case." Such remark to counsel coupled with a direct admonition to the jury effectually safeguarded the rights of the accused. (State v. Caviness, 40 Idaho 500, 235 P. 890.)

Evidently, for the purpose of impeachment, appellant was asked on cross-examination:

"Q. Do you remember going to Ray's home in St. Anthony?

"A. Yes, sir.

...