State v. Folden

• Decision Date: 29 June 1914
• Docket Number: 20670
• Citation: 66 So. 223,135 La. 791
• Court: Louisiana Supreme Court
• Parties: STATE v. FOLDEN

66 So. 223

135 La. 791

STATE v. FOLDEN

No. 20670

Supreme Court of Louisiana

June 29, 1914

Rehearing Denied October 21, 1914

SYLLABUS

(Syllabus by the Court.)

The ability of a witness to remember an act about which he is testifying is a matter exclusively within the province of the jury.

Statements made by a witness may be introduced for the purpose of impeaching said witness. But where the witness admits on direct and cross-examination that she made such statements and asserts that they are false, there is nothing to impeach, and her statements are properly excluded when offered in evidence.

Special charges requested by the defense are properly refused, when they are not applicable to the facts disclosed on the trial.

Under an indictment charging the accused with willfully, maliciously, and feloniously assaulting and ravishing a female against her will, it is not necessary to prove that the accused used force, where the evidence shows that the female is a child under twelve years of age, and that she was persuaded by the accused, who assaulted and ravished her. The assault was against her will, as she was not able to consent thereto.

A motion for a new trial on the ground of newly discovered evidence is properly refused when such evidence is merely cumulative and would not change the result. And where the evidence is not in the record, the Supreme Court cannot review the ruling of the trial judge as to whether it is cumulative or not.

Where the avowed object of newly discovered evidence is to discredit a prosecuting witness, the general rule is a new trial will not be granted.

J. A. Wlliams and F. R. Taylor, both of Colfax (W. C. & J. B. Roberts, of Colfax, of counsel), for appellant.

R. G. Pleasnt, Atty. Gen., and John R. Hunter, Dist. Atty., of Alexandria (G. A. Gondron, of New Orleans, of counsel), for the State.

OPINION

SOMMERVILLE, J.

Defendant was found guilty of rape, committed upon his daughter, under twelve years of age. The verdict of the jury was qualified, and defendant bases his appeal, asking for a reversal of the judgment condemning him to life imprisonment, upon grounds set forth in four bills of exceptions.

The first bill is reserved to the ruling of the court in permitting a child of ten years of age to testify concerning things which happened some four years before. Whether the witness remembered, or did not remember, the things and matters which he testified about, and which he said had happened some four years previously, is a matter for the jury to determine. The testimony cannot be reviewed by the Supreme Court.

The next bill of exceptions is taken to the ruling of the court in excluding a sworn statement made by the prosecutrix, which went to show that defendant was not guilty of committing the crime of rape upon her.

It appears from the bill that, while the prosecutrix was on the witness stand, she was asked concerning this affidavit, or sworn statement, and she admitted having made the same. She was fully examined by the district attorney and by counsel for defendant about the contents of this affidavit, and her testimony could not therefore be impeached by producing and filing said affidavit. Having admitted that she made the affidavit, there was nothing to contradict; there was nothing to impeach in her testimony in connection with the affidavit.

In State v. Goodbier, 48 La. 770, 19 So. 755, we say in the syllabus:

'If the witness admits the contradictory statements, the accused can offer no proof of the contradictions thus admitted, although such proof is proposed to be given to show the falsity of the explanations of the witness why he made the statements contrary of his testimony' (citing Wharton's Crim. Ev. § 483, and Rapalje, Law of Witnesses, § 204).

The next bill is reserved to the ruling of the court in refusing to give several special charges requested by the defendant.

The court properly refused to charge the jury that:

'The evidence of the prosecutrix, the party claimed to have been ravished, is not sufficient to convict, unless corroborated by other evidence, where the defendant testifies and denies the charge of guilt.'

The court properly charged that the jury were to consider the evidence of the accused as any other witness, and that they could, if their minds were satisfied beyond a reasonable doubt, convict, without corroborating circumstances, on the evidence of the prosecutrix, but that it was unsafe to convict without corroborating circumstances supporting the evidence of the prosecutrix. The charge is in conformity with the rules of evidence, and it is approved.

The next requested charge was that:

'If the indictment shows that the act of rape was committed by force, and against the will of the prosecutrix, it must be so proved, and conviction cannot be had upon the evidence that the female was under the age of consent, even had such evidence sustained the conviction, had the indictment been framed with reference thereto.'

The requested charge appears to be inapplicable to the case, as the trial judge says that the proof showed that the prosecutrix was under twelve years of age, and, under the persuasion of her father, gave her consent, although the law considers a child of that age as incapable of giving consent. The testimony does not appear to have been objected to. The charge was properly refused. Several of the other requested charges have reference to the crime of rape committed upon a person over the age of twelve years; they were inapplicable, and were properly refused.

The trial court followed the ruling of this court in the case of State v. Mehojovich, 118 La. 1013, 1020, 43 So. 660, 663, from which we quote as follows:

'The defendant requested the judge to give to the jury the following special charge: 'If the jury believe from the evidence that at the time the offense is alleged to have been committed the prosecuting witness made no outcry, and did not, as soon as an opportunity...