State v. Fowler

Decision Date24 April 1907
PartiesSTATE, Respondent, v. LEONARD L. FOWLER et al., Appellants
CourtIdaho Supreme Court


1. In the examination of an ignorant and illiterate witness who does not understand the English language nor the methods of taking testimony in court procedure, greater latitude should be allowed than in the examination of the average witness.

2. The law will take cognizance of and punish criminal acts and conduct with equal severity and justice, whether such acts and conduct consist of or are described in language not found in the statutes and lexicons or in language in general use and to be found in the books.

3. In a prosecution for rape, the state may prove by the prosecutrix and other witnesses that she made complaint soon after the commission of the alleged act, and show when, where and to whom and under what circumstances she made complaint and her appearance, demeanor and physical condition at the time she made complaint, but the details of the conversations had and name of the person accused by her may not be given by the witness.

4. Statements and complaint made by a member of prosecutrix's family to third persons as to the commission of the offense are not admissible in evidence on a trial for rape.

5. A party producing a witness "may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony," but a prosecutor should not propound questions to a witness for the mere purpose of discrediting him where he is not prepared to show such inconsistency.

6. It is improper for a trial court to comment on the evidence produced before the jury or to suggest to the jury what fact is proven or disproven by the evidence.

7. In a prosecution for rape, where the female was under no legal disability to give consent, it is error for the court to instruct the jury that: "The acts of sexual intercourse being admitted, the burden of showing that they were committed with the consent of the woman without force or violence or threat is upon the defendants."

8. Where the offense of rape is charged as having beeen committed on a female who was not under any legal disability to give consent to the act, the state must show beyond a reasonable doubt not only sexual intercourse, but that it was committed without the consent and against the will of the woman.

9. The fact that the prosecutrix received and accepted money from her assailant after the perpetration of the offense, while a circumstance admissible in behalf of the defendant, is of itself not sufficient to prove consent and absolve the defendant from guilt.

(Syllabus by the court.)

APPEAL from the District Court of Fourth Judicial District for Blaine county. Hon. Lyttleton Price, Judge.

Defendants were prosecuted on the charge of rape and convicted and sentenced to serve each a term in the state penitentiary. From the judgment and an order denying their motion for new trial, defendants appealed. Reversed.

Reversed and remanded.

R. M Angel and Sullivan & Sullivan, for Appellants.

In a criminal prosecution the venue must be proved as laid. (22 Ency. of Pl. & Pr. 820.)

When a bill of exceptions purports to set out all the evidence adduced, and shows no proof of the venue, a judgment of conviction will be reversed. (Cowthorn v. State, 63 Ala. 157; Harrison v. State, 3 Tex. App. 558; Jack v. State, 3 Tex. App. 72.)

Positive testimony is necessary to prove venue. (Speight v State, 80 Ga. 512, 5 S.E. 506; Franklin v. State, 64 Tenn. 613.)

It is well established that the prosecution may show that the prosecutrix made complaint of the offense, but the details or particulars of the complaint, stated by her to others, are inadmissible. (Parker v. State, 67 Md. 329, 1 Am St. Rep. 387; State v. Robertson, 38 La. Ann. 618, 58 Am. Rep. 201; People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 P. 691; People v. Lambert, 120 Cal. 170, 52 P. 307; State v. Daugherty, 63 Kan. 473, 65 P. 695; 3 Greenleaf on Evidence, sec. 213; Stevens v. People, 158 Ill. 111, 41 N.E. 856.)

The record does not contain a word going to show that the acts in question were admitted. Such an instruction is clearly erroneous and prejudicial to the defendants. The burden of proof and the obligation to convince the jury beyond a reasonable doubt of the prisoner's guilt is, in criminal trials, upon the state from the beginning to the end of the trial. (Underhill on Evidence, sec. 249; Underhill on Criminal Evidence, sec. 24.)

It is material error to place the burden of proof on the wrong party, since it is calculated to mislead the jury. (1 Blashfield's Instructions to Juries, sec. 347, and cases there cited.)

J. J. Guheen, Attorney General, H. L. Ensign, Prosecuting Attorney of Blaine County, Edwin Snow and J. H. Peterson, for the State, file no brief.

AILSHIE, C. J. Sullivan, J., concurs.



The defendants were tried jointly on the charge of rape committed on an Indian woman in Blaine county, July 30, 1906. A verdict of guilty was returned and the prisoners were thereafter sentenced to serve each a term of five years in the state penitentiary. The defendants have appealed from the judgment and an order denying their motion for a new trial.

It is first urged by counsel for defendants that the venue was not shown to be within the county of Blaine, where the case was tried. It will be unnecessary to consider this assignment here further than to say that we do not think it is well taken. One witness testified on the part of the state that the scene of the trouble was in Blaine county, and no one denied or disputed that evidence. Of course, venue can no more be proven on hearsay than any other fact, but here we think the proof could not properly be classed as hearsay.

Defendants assign as error the action of the court in overruling objections to certain questions asked the witness, Snake River Jeff, the husband of the prosecutrix. He was asked if he told Mrs. Billingsley anything about the occurrence. He answered that he "told the whole family." Such questions in a case of this kind can seldom be competent or proper, but the answer here was not such as to prejudice the defendant, and besides it should be borne in mind that in this case the prosecutrix and principal witnesses for the state were Indians, who understood but very little English, and whose testimony had to be taken through means of an interpreter. In the examination of an Indian who has practically no conception of court procedure or the competency of statements made by him or others to him, greater latitude must be allowed in eliciting such facts as he knows and which are really competent than in ordinary cases.

Exception is also taken to the action of the court in telling the prosecuting attorney that he would have to further question the prosecutrix to show if he could that the act of sexual intercourse had been completed--that he did not think the law would take notice of the words witnesses had used to convey the idea that intercourse had taken place. There was no error in this, although we think it was unnecessary. The words used by the witnesses were not drawing-room terms, and are neither found in the statutes nor dictionaries, but judging from the familiarity with which the witnesses used them, they must have imparted quite a definite notion of what transpired. A man cannot claim protection from the penalty of his acts or conduct, either civilly or criminally, simply because he has uttered words or his act has been described in language not used in the statutes or found in the lexicons. (Edgar v. McCutchen, 9 Mo. 768; Barnett v. State, 35 Tex. Crim. 280, 33 S.W. 340; Linck v. Kelley, 25 Ind. 278, 87 Am. Dec. 362; 4 Words and Phrases, 2994.)

The defendants assign as error the action of the court in permitting the witnesses, Jane Billingsley and Archie Billingsley; to testify to the details of a conversation had with Snake River Jeff some time after the commission of the offense. The testimony given by these witnesses as to their conversation with Jeff was very meager, and not particularly prejudicial to the defendants, but since the case must go back for a new trial, it becomes our duty to announce the rule to be followed on the next trial. It was proper and competent for Jeff, who had been present, to testify to what he saw and heard at the time and place of the commission of the alleged offense and all that occurred while defendants were present. It was also competent for him to testify to what his wife, Mary, told him occurred at the time as a part of the res gestae. On the other hand, it was not competent for the witnesses to relate the conversation they had with Jeff, though it would be competent for them to state that he made the complaint in presence of the prosecutrix, and for them to testify to the condition and appearance of both Jeff and the woman.

Now, as to the evidence of the fact and circumstances of the complaint made by the prosecutrix:

We think it is the generally accepted rule that the state may prove by the prosecutrix and the witnesses to whom she made complaint that she did make complaint, and when, where and to whom it was made, and her appearance, demeanor and physical condition at the time of making such complaint, and also the fact that some person was accused of the commission of the offense; but the details of the complaint and conversations had are never admissible on the part of the state except under peculiar circumstances. We think the correct rule is laid down...

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