State v. Goguen
| Decision Date | 26 November 1952 |
| Parties | STATE v. GOGUEN. |
| Court | Oregon Supreme Court |
George H. Brewster, of Redmond, argued the cause for appellant. With him on the brief was James Bodie, of Prineville.
E. D. Harris, Dist. Atty., of Madras, argued the cause and filed a brief for respondent.
Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and WARNER, JJ.
This is an appeal by the defendant from a judgment of the circuit court, based upon a verdict, which adjudged him guilty of the crime of rape upon the daughter of his wife. The indictment charged, and the evidence showed, that the purported victim was under the age of 16 years. The indictment was based upon §§ 23-420 and 23-421, O.C.L.A.
The defendant's brief submits two assignments of error. The first follows:
'The Court erred by instructing the jury:
The second is phrased in these words:
'The Court erred in rejecting the offer of defendant's Exhibit A for identification.'
Exhibit A is a book, in paper binding, 188 pages in length. The pages are four by seven inches in size. As a witness, the defendant described it as sexy, filthy literature, and claimed that he had found it in the possession of his wife's daughter, of whom we will speak as the prosecuting witness. The latter denied that she had read or possessed the book.
The defendant makes no contention that the state's evidence is insufficient to justify the verdict. We shall now consider the assignments of error.
At the beginning of the trial, defendant's counsel made no opening statement, but before the examination of the witnesses had progressed far he stated, in reply to an inquiry from the bench, 'We want to show a frame up, as I am going to call it.' Similar declarations were later made. After the state had rested, defendant's counsel, in outlining the defense which he was about to present, said:
'If the Court please, ladies and gentlemen: We will now undertake a defense of this case and I will tell you some of the things the defendant expects to show. In your interrogation of the jury we suggested we thought it was a frame up. We are going to prove a frame up. We are going to call one witness during the trial of this case that will show something that happened yesterday afternoon. We will expect to show on Friday, the 3d day of August, the trip was made to Redmond by Mr. and Mrs. Goguen and the girl said they took her to Madras and the mother said they left her at home to get dinner and I asked her fully of that as anything else. I will show you after Mrs. Goguen left as a witness from the witness stand and Doctor Harris was called to the witness stand, we expect to show that Mrs. Goguen and the girl had a conversation. The girl said: 'Mother, be sure and tell I went to Madras with you.' We expect to show you that this girl had made repeated threats, that she was going to get this man. We will show that by several witnesses. We will show you that by several witnesses. We will show the principal cause of trouble was in regard to the kind of books this girl was reading, sexy books.
'We will show all of the circumstances surrounding all of this thing that you may make your minds up that he is not guilty.
From the foregoing, it is seen that the instruction which is challenged by the first assignment of error pertained to a defense which the defendant had announced.
The exception to the instruction that the defendant saved, which is the subject matter of the first assignment of error, as stated in the bill of exceptions, is the following:
State v. Newburn, 178 Or. 238, 166 P.2d 470, says:
'* * * We agree with appellant that when the state thus undertakes to corroborate the statement of the prosecutrix that defendant had sexual intercourse with her, he has the right to rebut any unfavorable inference arising from such evidence by showing that the ruptured hymen may have been caused as a result of sexual intercourse with some other person.'
The defendant contends that he presented evidence which had a tendency to indicate that the complaining witness possibly had had sexual intercourse with someone else, and that the part of the instruction which told the jury 'the previous conduct of the girl is not a matter that enters into your consideration of this case except upon charges of frame-up and upon that alone' rendered it impossible for the jury to consider whether someone else, and not he, was responsible for the ruptured hymen.
The evidence upon which the defendant depends to sustain his contention that he showed that the prosecuting witness possibly had had intercourse with someone else can be classified as follows: (1) evidence showing that she read sexy literature, of which Exhibit A is an example; (2) evidence showing that she, in company with companions of both sexes and of about her age, went upon automobile rides and in their course visited open air theaters and dark places upon the highway where they embraced each other.
We have given the defendant's characterization of Exhibit A; he termed it filthy and sexy. We made a hurried reading of Exhibit A in an effort to acquaint ourselves with its nature. The prefix to the book describes it as 'the world's most popular novel.' It states that the Magistrate's Court of the City of New York and the Superior Court of Pennsylvania refused to suppress its sale. According to an advertisement which appears upon the back cover of the book, the novel has been translated into twelve languages and more than six million copies of it have been sold. It and other books of its kind, similarly bound and printed, are offered for sale in large quantities in many places. Whatever may be the character of the book, it is certain that no woman ever received a ruptered hymen from reading it.
Obviously, if the evidence summarized in the preceding paragraph has no tendency to show that the prosecuting witness had had sexual intercourse with some third party, the defendant's assignments of error lack merit. The defendant has cited no authorities which intimate that evidence of the kind upon which he relies tends to prove sexual intercourse. Our examination of the precedents has disclosed those which we will now review.
In People v. Mangum, 31 Cal.App.2d 374, 88 P.2d 207, 210, the court, in affirming a judgment which convicted the defendant of the crime of rape by force and violence, took note of the rule that when such is the charge, proof of unchaste acts of the prosecutrix is admissible to disprove the allegation that the act was committed by force and against the will of the prosecutrix. The court held that no error was committed when objections were sustained to questions, of which the following were examples:
'Now, I will ask you, Mrs. Amos, if you have not been taken home from the town of Tracy to your home, by police officers, while you were in a highly intoxicated condition?'
'Mrs. Amos, I will ask you if it is not a fact that you have come home to your own home at 5:00 or 6:00 o'clock in the morning in an intoxicated condition?'
It said:
'Such questions are also inadmissible for the reason...
To continue reading
Request your trial
-
State v. Bell
...Powers. 'MR. POWERS: Yes, your Honor.' Defendant relies upon State v. Nab, 245 Or. 454, 421 P.2d 388 (1966), and State of Oregon v. Goguen, 196 Or. 586, 250 P.2d 924 (1952). In Nab the court 'The general rule is that in prosecutions for statutory rape, consent not being an issue, evidence o......
-
State v. Nab
...State v. Newburn, 178 Or. 238, 240, 166 P.2d 470; State v. Haynes, supra, 116 Or. at 640, 242 P. 603. See, also, State v. Goguen, 196 Or. 586, 589--590, 250 P.2d 924. Under this exception the evidence as to the prosecutrix' prior relations with her father, grandfather, and the defendant's s......
-
State v. Workman, 79-4-248
...had an opportunity to engage in the type of conduct which defendant seeks to distill from the victim's testimony. State v. Goguen, 196 Or. 586, 592, 250 P.2d 924 (1952) (evidence that complainant read "sexy literature" and went with members of both sexes on car rides during which "embracing......