State v. Harness

• Decision Date: 17 May 1904
• Parties: STATE v. HARNESS
• Court: Idaho Supreme Court

76 P. 788

10 Idaho 18

STATE v. HARNESS

Supreme Court of Idaho

May 17, 1904

RAPE-STATEMENT OF COUNTY ATTORNEY TO JURY-ADMISSION OF EVIDENCE-FAILURE OF COURT TO INSTRUCT THE JURY AS TO PRESUMPTION OF INNOCENCE.

1. In the trial of criminal cases the county attorney should not be permitted to use language in his argument to the jury calculated to prejudice their minds against the defendant.

2. Statements made to another party by the person alleged to have been assaulted and raped, and not in the presence of the defendant, are not admissible, unless it be shown that it was so closely interwoven with the transaction that it becomes a part of the res gestae.

3. It is a statutory requirement that the court should instruct the jury in writing on all the material issues of the case, if the charge is a felony, but if he fails to do so, in order to predicate error, counsel must request the charge and have the court's refusal to give it, otherwise it is not error.

4. It is error to refuse to require the husband of the alleged injured party to testify whether he discovered marks or bruises on the person of the wife, when other witnesses had testified to certain marks and bruises.

5. Where one is convicted of the crime of rape and sentenced to a term of fourteen years' imprisonment, and the case is reversed on questions of law and sent back for a new trial this court will not examine the evidence to ascertain whether the sentence is excessive.

(Syllabus by the court.)

APPEAL from District Court of Nez Perce County. Honorable Edgar C Steele, Judge.

Defendant was tried and convicted of the crime of rape. From the judgment and order overruling his motion for a new trial he appeals. Judgment reversed.

Judgment reversed and new trial ordered.

George W. Tannahill, for Appellant.

It was competent for the defendant to cross-examine the witness as to her antecedents, character and past conduct, and thus impair her credibility. This line of inquiry became important, because of the contention that the prosecution was prompted by the malice of this witness resulting from a failure to extort money, and more, the circumstances surrounding this case seem to justify a full cross-examination as to her past conduct and character. (State v. Pefferle, 36 Kan. 90, 12 P. 406; State v. Probasco, 46 Kan. 310, 26 P. 749; State v Wells, 54 Kan. 151, 37 P. 1005; State v. Park, 57 Kan. 431, 46 P. 713; State v. Greenburg, 54 Kan. 161, 53 P. 61; Brandon v. People, 42 N.Y. 265; People v. Casey, 72 N.Y. 393; Turner v. Territory, 11 Okla. 660, 69 P. 804; State v. Webb, 6 Idaho 428, 55 P. 892; State v. Broadbent, 27 Mont. 342, 71 P. 1; State v. Abbott, 65 Kan. 139, 69 P. 160; State v. Collins et al., 33 Kan. 77, 5 P. 368; Horrigan and Thompson on Self-defense, p. 468; Stewart v. Kindel, 15 Colo. 539, 25 P. 990; Blenkiron v. State, 4 Neb. 11, 58 N.W. 587; State v. Krum, 32 Kan. 372, 4 P. 621.) The court erred in permitting the county attorney to make the following statement after the defendant had made his objection and exception: "I repeat it, gentlemen of the jury, any man is justified in taking the law in his own hands under such circumstances." (State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716; People v. Derbert, 138 Cal. 467, 71 P. 564; People v. Mitchel, 62 Cal. 411; State v. Taylor, 7 Idaho 134, 61 P. 288; State v. Anthony, 6 Idaho 383, 55 P. 884; People v. Lee Chunck, 78 Cal. 317, 20 P. 719; State v. Tennison, 42 Kan. 330, 22 P. 429; Smith v. People, 8 Colo. 457, 8 P. 920; People v. Ah Len et al., 92 Cal. 282, 27 Am. St. Rep. 103, 28 P. 286; Newby v. People, 28 Colo. 16, 62 P. 1035; People v. Vallier, 127 Cal. 65, 59 P. 295.) In a criminal prosecution, the conversations and statements of third parties not made in defendant's presence or hearing are incompetent. (People v. Wilmot, 139 Cal. 103, 72 P. 838.)

John A. Bagley, Attorney General, for the State.

In the case at bar the defendant was permitted to cross-examine the witness, Anna Uhri, in regard to these matters, but when he undertook to prove by other witnesses, as part of his case, that the witness, Anna Uhri, had been found in bed with her brother in June, 1902, then the court excluded the testimony. They were trying the case of Harness for rape upon his sister in law and not the case of Anna Uhri for illicit cohabitation with her brother. They have not brought the matter under the rule of impeachment as laid down by our statute or under any other rule of evidence. (Code Civ. Proc., secs. 4490, 4491; Anthony v. State, 6 Idaho 383.) Prosecuting attorney in a criminal case may properly declare to a jury that the evidence convinces him beyond a reasonable doubt that the prisoner is guilty. (2 Ency. of Pl. & Pr. 726, cases cited, note 2.) In State v. Jefferson, 43 La. Ann. 995, 10 So. 199, the prosecuting attorney said: "If juries did not convict people who have been so clearly shown to be guilty as this defendant has been, you might as well tear down the courthouse." Held not reversible error. In Scott v. State, 7 Lea, 235, the attorney general said to the jury: "If the juries don't punish, the people will rise up and punish it." Held reprehensible, but not reversible, error. Matters of common and general information and matters of known and settled history may be referred to in argument by way of illustration or emphasis with entire propriety, though they are not strictly pertinent to the issue. (2 Ency. of Pl. & Pr., cases cited, note 4; Northington v. State, 14 Lea, 424; State v. Phillips, 117 Mo. 389, 22 S.W. 1079; State v. Elvins, 101 Mo. 243, 13 S.W. 937; Heyl v. State, 109 Ind. 589, 10 N.E. 916; Combs v. State, 75 Ind. 215; Turner v. State, 89 Tenn. 547, 15 S.W. 838; State v. Jefferson, 43 La. Ann. 995, 10 So. 199.) In prosecutions for rape it may be said to be universally conceded that the state may, on the direct examination of the prosecutrix, prove the fact that she made complaint of the injury, and when and to whom, and she may be corroborated by the persons to whom she complained as to the same fact. (Rice on Criminal Evidence, 826, cases cited.)

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.

This is an appeal from the district court of Nez Perce county. The county attorney filed an information in said court charging the defendant with the crime of rape, to wit: "On the twelfth day of February, 1903, at the county of Nez Perce, in the state of Idaho the aforesaid David Harness then and there being committed the crime of rape by then and there feloniously, with force and violence making an assault upon one Rosa Harness, who was not then and there the wife of the said David Harness, and did then and there feloniously ravish and carnally know and accomplish with her, the said Rosa Harness, an act of sexual intercourse by force, violence, and against her will and resistance, contrary to the form of the statute in such case made and provided."

The defendant was tried upon this charge and on the seventh day of November, 1903, found guilty of the crime of rape. On the seventeenth day of November he was sentenced to a term of fourteen years in the state penitentiary. On the twenty-seventh day of February, 1904, an order was made and entered thereafter by the court, overruling defendant's motion for a new trial. On the second day of March, 1904 defendant perfected his appeal from the judgment; also from the order overruling the motion for a new trial.

Defendant assigns thirty-six errors occurring on the trial and in the order overruling his motion for new trial. Counsel for appellant in his brief discusses assignments 3, 10, 12, 15, 16, 17, 19, 20, 21, 22 and 23 together as one assignment, stating they relate to the same thing and are substantially the same. It is disclosed by the record that William Harness, brother of the defendant, was living with his wife, Rosa Harness, the woman upon whom the alleged assault and offense of rape was committed, in Nez Perce county. It is also shown that Anna Uhri and Frank Uhri, brother and sister of Rosa Harness, made their home with their sister and husband. Prior to moving to the William Harness homestead they had lived upon the homestead of defendant adjoining the homestead of William. Friendly relations had existed between Anna Uhri and defendant, and they were engaged to be married. This engagement seems to have been terminated in May or June, 1902. Defendant and Frank Uhri had been on friendly terms until about the time last indicated. It is shown that the house of William Harness contained two rooms, one above and one below, and that there was a bed in each room. Anna Uhri testified that her sister and husband occupied the lower room and that she occupied the upper room; also her brother Frank slept upstairs.

Counsel for appellant offered to show by Nancy Harness, mother of defendant and William Harness, that about the time the engagement was terminated between defendant and Anna Uhri that she went to the upstairs room of her son William and found Anna Uhri and her brother Frank in bed together, and she immediately reported her discovery to defendant, who went upstairs and threw Frank out of bed, upbraiding him for his conduct. That Frank came downstairs and was sullen and angry about his treatment from defendant, and that thereafter the relations between Frank Uhri and defendant were unfriendly. Counsel offered to prove the same state of facts by the younger brother, Ed. Harness, who it is shown was present at the time above indicated. Before offering to prove the above state of facts, counsel for appellant stated to the court that the theory of the defense was that there was a conspiracy on the part of Frank Uhri, Anna Uhri and Rosa Harness to...