State v. Hammock

• Decision Date: 22 July 1910
• Citation: 110 P. 169,18 Idaho 424
• Parties: STATE, Respondent, v. MARSHALL HAMMOCK, Appellant
• Court: Idaho Supreme Court

110 P. 169

18 Idaho 424

STATE, Respondent, v. MARSHALL HAMMOCK, Appellant

Supreme Court of Idaho

July 22, 1910

RAPE-UNCHASTITY-OTHER OFFENSES-CONSPIRACY TO COMMIT RAPE-EVIDENCE OF CO-CONSPIRATOR.

(Syllabus by the court.)

1. On a trial for rape, where the female was under the age of consent at the time of the commission of the offense, evidence as to the chastity of the prosecutrix, or that she had previously had sexual intercourse with other men, is not admissible.

2. Where a conspiracy existed between defendant and his wife for the purpose generally of procuring girls to have sexual intercourse with defendant, a statement or declaration made by the wife subsequent to the commission of a specific act and during the existence of the common design, is admissible against the defendant as a declaration from a co-conspirator.

3. Evidence of the common purpose to commit like crimes on other girls and the commission of such offenses by the defendant held admissible under the circumstances of this case, as incidents in the commission of the common criminal design included in the conspiracy.

4. Alleged errors in the admission and rejection of evidence examined, and held, that no substantial right of defendant has been prejudiced by the rulings of the court.

APPEAL from the judgment of the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan Judge.

Prosecution for rape on a female under the age of consent. From a judgment of conviction defendant appealed. Affirmed.

Affirmed.

Frank Harris, for Appellant.

"The declaration, to be admissible, must not only be made during the pendency of the criminal enterprise, but also in furtherance of its objects. A narrative to a stranger related during the pendency of the criminal enterprise, but of a past event or occurrence, is just as objectionable as if related after the criminal enterprise is terminated." (Samples v. People, 121 Ill. 547, 13 N.E. 536; Brown v. United States, 150 U.S. 93, 14 S.Ct. 37, 37 L.Ed. 1010; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; People v. Collum, 122 Cal. 186, 54 P. 589; People v. Opie, 123 Cal. 294, 55 P. 989; People v. Aleck, 61 Cal. 137; Roberts v. Kendall, 3 Ind.App. 339, 29 N.E. 487.)

"If there has been complicity between all of the defendants in the commission of the offense, the declarations by either after the commission of the offense could not be used as evidence against the other defendants. " (State v. Ah Tom, 8 Nev. 213; People v. Davis, 56 N.Y. 95; Sheppard v. Yoakum, 10 Ore. 402; People v. Farrell, 11 Utah 414, 40 P. 703.)

Proof of other distinct and disconnected crimes of the same character by defendant is not admissible. (McClain's Crim. Law, sec. 461; Janez v. People, 159 Ill. 440, 42 N.E. 862; Parkinson v. People, 135 Ill. 401, 10 L. R. A. 91, 25 N.E. 764; Towne v. People, 89 Ill.App. 258; People v. Lonsdale, 122 Mich. 388, 81 N.W. 277.)

"Hearsay evidence cannot be received as proof of age, where the purpose of the evidence is to establish infancy as a defense." (1 Ency. of Evidence, 736; People v. Mayne, 118 Cal. 516, 62 Am. St. 256, 50 P. 654.)

D. C. McDougall, Attorney General, O. M. Van Duyn, J. H. Peterson, Assistant Attorneys General, and J. L. Richards, Prosecuting Attorney, for Respondent.

Evidence in regard to chastity of an infant complaining witness in rape cases is wholly irrelevant, incompetent and immaterial. (State v. Anthony, 6 Idaho 383, 55 P. 884; sec. 6082, Rev. Codes.)

It is not necessary that a conspiracy be proved for any particular purpose, but only necessary that a general community of interest and purpose is shown, and declarations are admissible, though conspiracy to commit the offense in question is not proved.

Several successive crimes committed during the conspiracy are merely regarded as parts of one, indivisible whole. (Underhill on Criminal Evidence, secs. 491, 493.) In this case, the act charged in the information is but one of the parts of the general conspiracy. Courts are rarely limited in the admission of this kind of testimony, and a wide discretion is vested in the district judge. (Underhill on Criminal Evidence, sec. 494; State v. Corcoran, 7 Idaho 220, 61 P. 1034; 8 Cyc. 682.)

The general rule is that only the crime charged against the defendant in the information can be proved, but there are exceptions to this rule, and this is one of the exceptions. (State v. Lancaster, 10 Idaho 410, 78 P. 1081.)

The facts of date and place or proof of birth may be shown by hearsay or by reputation in the family, or it may be established circumstantially where the original records have been lost. (See sec. 1480, Wigmore on Evidence; 16 Cyc. 1124.)

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

OPINION

AILSHIE, J.

The defendant was convicted of the crime of rape, committed on a female under the age of consent.

We shall deal with the exceptions by groups rather than separately.

The court properly sustained the objections to the questions asked by counsel for defendant, as to whether the prosecutrix had ever had sexual intercourse with anyone prior to the time she submitted to that relation with the defendant. The fact that this girl under the age of consent had had intercourse with other men, or even if she had become a common prostitute, would constitute no defense for the defendant. (Underhill on Cr. Ev., sec. 418; 10 Ency. of Ev., secs. 603 and 605; People v. Abbott, 97 Mich. 484, 37 Am. St. 360, 56 N.W. 862; Plunkett v. State, 72 Ark. 409, 82 S.W. 845; People v. Wilmot, 139 Cal. 103, 72 P. 838; People v. Johnson, 106 Cal. 289, 39 P. 622; State v. Hilberg, 22 Utah 27, 61 P. 215.) If she was under the age of consent she could not have given legal consent to the violation of her person, and the fact that her person had been unlawfully and criminally violated by another would afford no justification for the defendant committing a like crime.

It is contended, however, that such evidence ought to be admitted for the purpose of throwing light on her credibility as a witness. While a lewd woman is less likely to be truthful than a chaste woman, still there is not such an immediate connection between unchastity and untruthfulness as to permit a woman's chastity to be called in question every time she goes on the witness stand. If she is to be impeached generally for untruthfulness, it must be done in the statutory way. (Sec. 6082, Rev. Codes.) Jurymen will get a very clear idea of the credibility of the witness from her demeanor and appearance and that mass of circumstances which must always appear to jurors from seeing and hearing a witness while testifying.

On the trial the state introduced evidence of statements and admissions made by Mrs. Hammock, the wife of defendant, some time after the commission of these several acts by him, in which Mrs. Hammock is reported as saying that she knew that the defendant had intercourse with the prosecutrix and that he had done so with other girls....