In a
prosecution for rape where the charge is that the defendant
had sexual intercourse with the complaining witness with her
consent, and the state relies upon the complainant’s
story corroborated only by testimony that the defendant was
with her at the time of the alleged intercourse and that at
the expiration of the usual period of gestation she gave
birth to a child, the defense should be permitted to
cross–examine her fully regarding her association with
other young men at about the time of her conception, even
although no distinct offer is made to show that she had
improper relations with any of them, and held, that
under the facts of this case, the refusal to permit such
inquiry was material error.
[Ed
Note.–For cases in point, see Cent. Dig. vol. 42, Rape,
§§ 55–59.]
On
rehearing. Reversed.
For
former opinion, see 86 P. 160.
OPINION
MASON,
J.
Upon
the first hearing of the defendant’s appeal from a conviction
upon a charge of statutory rape (the element of force being
lacking) the judgment was affirmed. The most serious question
involved was whether the cross-examination of the complaining
witness, a girl over 17 years of age, had not been unduly
restricted, and a doubt of the correctness of the decision of
this court on that question led to the granting of a
rehearing. Upon further consideration the conclusion is
reached that, under all the circumstances of the case, a
wider latitude should have been allowed to the defendant in
this respect and the former ruling as well as the judgment of
the district court will consequently be reversed. The ruling
complained of was the refusal of the trial court to allow the
defendant’s counsel to cross-examine the complainant with
regard to her relations with young men other than the
defendant. The state had offered no evidence regarding her
habits or associates, but relied upon her story, corroborated
only by other testimony that she was with the defendant at
the time of the alleged sexual intercourse, and that at the
expiration of the usual period of gestation she gave birth to
a child. In order to show the precise manner in which the
question was presented practically the entire record bearing
upon the matter is here reproduced.
From
the cross-examination of the complaining witness: "Q.
Now you stated that you never went with anybody else but
Johnnie Gerike? [She had not up to this time made such a
statement.] A. No, sir; I never kept company with anybody
else. Q. Isn’t it a fact that during last fall and last
winter you were frequently out at night? [The offense was
charged to have been committed in November.] A. I was out at
night, yes. Q. With some of these young men around town? (The
state objects as not cross-examination.) Defendant’s
Attorney: I am asking this for the purpose of impeachment. Q.
Did you not, during the month of November last, keep company
with [giving a man’s name]? (The state objects as being
incompetent, irrelevant, and immaterial, and not proper
cross-examination.) The Court: Objections sustained and
exceptions allowed the defendant. Q. Did you not go up here
to the restaurants with different young men around town
during the month of October and November and December alone?
(The plaintiff objects as being incompetent, irrelevant, and
immaterial, and not proper cross-examination.) The Court:
What is the purpose of this? Defendant’s Attorney: For the
same purpose, for the purpose of impeachment. The Court:
Hasn’t she a right to do that? Defendant’s Attorney: Yes,
sir. The Court: Then how does it impeach her? Defendant’s
Attorney: If she answers she didn’t, I expect to show she
did. The Court: If it is your purpose to follow this up and
show that she had sexual intercourse with any of these
parties or any others about that time that will be vital and
it will be impeachment, but merely to show that she was with
some other young man-I don’t believe that cuts any figure in
this case. If you assure me you expect to do that however-
Defendant’s Attorney: I don’t know that I can do that. Q. Is
it not a fact that you drove with a young man named [giving
name] from here down to a Christmas tree down in your
neighborhood along about the latter part of December toward
Christmas and were with him that evening, 1904? (The
plaintiff objects as being incompetent, irrelevant, and
immaterial, not cross-examination, which objection is
sustained by the court-the defendant saving exceptions.) Q.
Isn’t it a fact that during October, November, and December
you were out with [giving name] and a young man by the name
of [giving name] late at night? (The plaintiff
objects as being incompetent, irrelevant, and immaterial, and
not proper cross-Examination.) The Court: Do you expect to
rest with this line of inquiry or do you expect to show by
these other parties or anybody else, or attempt to impeach
her statement, that she had no connection with anybody else?
Defendant’s Attorney: I can’t say whether these parties will
testify to that or not. We expect to prove that she was out
with other boys. The Court: If I could see the purpose and
intention of the defense was to overthrow her statement that
she had no connection with any other boys this might be
proper. Prosecuting Attorney: We insist upon this matter. The
state has some rights here. The question at issue is whether
this defendant has had sexual intercourse with the witness.
Whether she was at a party with this one, or dance with that
one, or some place else with that one cannot be material in
this case. Even if they can show that she had sexual
intercourse it would not be material, because the question is
did she have sexual intercourse with this defendant? I will
ask the court to ask the counsel at this time what his
purpose is in offering this testimony. Defendant’s Attorney:
The testimony is for this purpose-to show if we can, both for
the purpose of impeaching her testimony and for the purpose
of showing if we can that she has had ample opportunity
around this town with other boys, more so than with this
defendant; that others have had far more opportunities around
this town and that she has been seen with them at night, and
that they have had far more opportunities then the defendant
has had."
From
the direct examination of one of defendant’s witnesses
"Q. Do you remember this last December of seeing Miss
Eva Stimatz [the complaining witness], this last December, at
any place down in that neighborhood? A. Yes, sir. Q. Where
was she? A. She was at the Christmas tree. Q. Do you know who
she came with? A. [The name of a young man.] Q. Where did she
come from? (The state objects as being absolutely
incompetent, irrelevant, and...
