State v. Gibbs

• Decision Date: 19 March 1928
• Docket Number: 5035
• Citation: 45 Idaho 760,265 P. 24
• Parties: STATE, Respondent, v. ALFRED GIBBS, Appellant
• Court: Idaho Supreme Court

265 P. 24

45 Idaho 760

STATE, Respondent, v. ALFRED GIBBS, Appellant

No. 5035

Supreme Court of Idaho

March 19, 1928

CRIMINAL LAW - RAPE - LACK OF CORROBORATION - WITNESSES - IMPEACHMENT-LEADING QUESTIONS.

1. Leading questions to a child witness are within trial court's discretion, and, in absence of abuse of such discretion, rulings thereon will not be disturbed.

2. In prosecution for statutory rape, where subject of intent as to included offenses, or what included offenses could be considered, as covered by instructions given, refusal of requested instructions thereon was not error.

3. In prosecution for statutory rape, refusal of defendant's instructions commenting on weight of evidence was proper.

4. Before witness' testimony can be impeached by showing prior contradictory statements, warning question must be asked, giving witness opportunity to explain or deny.

5. In prosecution for statutory rape, where state's objection to question asked prosecutrix whether she told defendant's father that defendant had given her a dime for putting dishes on the table, to impeach her previous testimony, was sustained; the error, if any, and if prejudicial, was prejudicial to the state rather than to defendant.

6. In prosecution for statutory rape, instruction which obviated the necessity of corroboration of prosecutrix was error.

APPEAL from the District Court of the Fifth Judicial District, for Oneida County. Hon. O. R. Baum, Judge.

Conviction on a charge of statutory rape. Reversed and remanded.

Reversed and remanded.

Ralph H. Jones and Jno. W. Clark, for Appellant.

Instruction in prosecution for rape authorizing conviction on the prosecutrix's testimony without corroboration whether her testimony is contradictory or not is erroneous and prejudicial error. (State v. Hines, 43 Idaho 713 254 P. 217; State v. Larsen, 44 Idaho 270, 256 P 107.)

Judgment of conviction of rape, based on the testimony of prosecutrix cannot be sustained in any event unless circumstances surrounding commission of offense are clearly corroborative of her statements. (State v. Hines, 43 Idaho 713, 254 P. 217.)

The uncorroborated testimony of the prosecutrix in a rape case is insufficient to sustain a conviction, where it is contradictory and defendant's denial is corroborated. (State v. Trego, 25 Idaho 625, 138 P. 1124.)

It is error to ask leading questions on material matters when there is no necessity or propriety for the same. (Hardtke v. State, 67 Wis. 552, 30 N.W. 723; Coon v. People, 99 Ill. 368, 39 Am. Rep. 28.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant, for Respondent.

It is discretionary with the trial court whether or not leading questions may be propounded. (C. S., sec. 8032; 1 Wigmore on Evidence, sec. 770; McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; State v. Simes, 12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 914.)

It is not an abuse of discretion to permit leading questions to be propounded to a child witness. (People v. Hinrich, 53 Cal.App. 186, 199 P. 1058; People v. Garbutt, 197 Cal. 200, 239 P. 1080.)

It is not error to instruct that the prosecutrix in a rape case need not be corroborated unless contradicted on material points. (State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Baker, 6 Idaho 496, 56 P. 81; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Andrus, 29 Idaho 1, 156 P. 421; State v. Pettit, 33 Idaho 326, 193 P. 1015.)

In rape cases a conviction may be had upon the uncorroborated testimony of the prosecutrix. (Authorities above cited.)

GIVENS, J. Wm. E. Lee, C. J., and Taylor and T. Bailey Lee, JJ., concur. Budge, J., dissents.

OPINION

GIVENS, J.

Defendant appeals from a conviction for statutory rape.

In view of the disposition of this case, the question of the sufficiency of the evidence as to penetration will not be discussed.

Leading questions to a child are within the discretion of the trial court (People v. Hinrich, 53 Cal.App. 186, 199 P. 1058), and in the absence of the abuse of such discretion, rulings made thereon will not be disturbed. (McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478.)

The subject of "intent" as to included offenses or what included offenses could properly be considered by the jury was fully covered by the instructions considered together. Therefore, there was no error in refusing defendant's requested instructions, numbers four and five.

Defendant's requested instructions, numbers one, two and three, commented on the weight of the evidence and were therefore properly refused.

Error is assigned because the court sustained an objection to the following question asked of the prosecutrix on cross-examination:

"Isn't it a fact that you told him (Mr. Gibbs) that Alfred (the defendant) gave you a dime for preparing dinner, putting the dishes on the table?"

The whole tenor of the previous testimony of the witness had been to the effect that her activity in the house had not been confined to anything so innocuous as setting the table. By the great weight of...