State v. Henderson
| Decision Date | 05 March 1958 |
| Citation | 139 A.2d 515,153 Me. 364 |
| Parties | STATE of Maine v. Vaughn HENDERSON. |
| Court | Maine Supreme Court |
Marcel R. Viger, Co. Atty., Biddeford, for plaintiff.
Philip F. Chapman, Jr., Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN and DUBORD, JJ.
On exceptions. The respondent, by indictment, was charged with the crime of statutory rape (Chap. 130, Sec. 10, R.S.1954). The cause was tried before a jury at the November Term, A.D. 1956 of the Superior Court, within and for the County of York. The docket entries show the respondent filed a motion for a new trial addressed to the presiding Justice which was denied. The record of the case discloses an appeal to this denial but the respondent's written argument is silent as to the appeal so we shall consider it as abandoned. Respondent has perfected thirteen exceptions.
These exceptions deal with the Court's refusal to strike from the bill of particulars (denominated specifications in the record) certain alleged prejudicial language, the admission of evidence of pregnancy and the overruling of respondent's motion for continuance because of the physical appearance of the prosecutrix being indicative of pregnancy which he said would be highly prejudicial to the respondent's case.
Counsel for the respondent in his brief and argument admits 'that it is proper for the prosecution to show that someone had carnally known the prosecutrix at or about a certain date and pregnancy is proof of a most impelling and cogent kind to support such a fact.' The respondent thereby makes it unnecessary to consider Exceptions I and II.
The State sought to introduce evidence of a prior act of sexual intercourse between the respondent and the prosecutrix on May 30th, some weeks previous to the date of the act of rape as charged in the indictment. This evidence was offered not in proof of the crime alleged in the indictment but for the purpose of showing a prior relationship between the parties as bearing on the probability of the occurrence of the alleged rape. At the time of the introduction of the testimony, through the prosecutrix, the presiding Justice said to the jury:
'And at this point I would say to the jury in reception of this evidence, which allegedly happened as some time in May, bearing in mind that the indictment alleges an offense in July, and that at this point I think it is wise to caution you that ultimately, if a Charge is given in this matter, that this evidence you have just heard relating to an incident in May, is not the one for which the respondent is being tried and that evidence has been ruled admissible only for the purpose of showing the relationship between the parties leading up to the incident in July; so I want you to bear that in mind in your reflection of the case.'
The Justice below in his charge pointed out to the jury that proof of prior acts of intercourse between the respondent and the prosecutrix would not justify a conviction under the indictment. He very carefully explained the purpose of the use of this testimony by saying that they might consider such evidence, if believed, as tending to show a relationship between the parties.
The rule laid down in the case of State v. Berube, 139 Me. 11, 26 A.2d 654 unequivocally allows evidence of prior acts of a similar nature to be shown for the purpose of demonstrating the relationship between the parties. On page 14 of 139 Me., on page 655 of 26 A.2d, the Court said:
'In the instant case we have no exception to the charge nor could one have been taken, since the testimony was admitted only for the purpose of showing the relationship between the parties, for which it was entirely proper.'
We have reaffirmed this principle in the case of State v. Norton, 151 Me. 178, 116 A.2d 635. Counsel for the respondent argues that the Justice also erred in admitting proof of the prior act because it was not described in the State's bill of particulars. The office of a bill of particulars in a criminal case is in the nature of a pleading and is to advise the accused and the Court of additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense. It enables the accused to prepare his defense and to more effectively plead his acquittal or conviction in bar of another prosecution for the same offense. It also has the effect of compelling the prosecution to observe certain limitations in the submission of evidence. The prosecution is not, however, required by its use to furnish the accused with the evidence which it expects to use. 42 C.J.S. Indictments and Informations § 156, p. 1092. Attention is called to the following quote from 42 C.J.S. Indictments and Informations § 253, p. 1271:
'The admission of evidence of matters not referred to in a bill of particulars is not erroneous where the bill contains general statements which might be deemed to include such matters.'
The burden on the State required it to prove beyond a reasonable doubt the crime alleged in the indictment. The bill of particulars particularized the crime alleged by setting forth the time, the place and some details surrounding its commission. The introduction of the testimony of the previous act between the parties was admissible evidence for jury consideration and could be accepted by them as evidence of the relationship between the prosecutrix and the respondent. The fact that the State in its bill of particulars did not mention this element of evidence did not cause it to be inadmissible.
Exceptions overruled.
Counsel for the respondent in cross-examination of the prosecutrix sought to question her regarding sexual relations that she may have had with other persons. This line of questioning was objected to by the State and the objections were sustained by the Court. Evidence of sexual acts performed by prosecutrix with other persons than the respondent is not admissible as an element of defense. 'The fact that a woman is unchaste is not a defence to rape.' State v. Dipietrantonio, 152 Me. 41, 122 A.2d 414, 418; State v. Flaherty, 128 Me. 141, 146 A. 7. The respondent contends that he should be permitted benefit of cross-examination as to the subject matter of sexual activity of the prosecutrix with others which may have taken place at or near the time of the alleged rape because of the evidence of pregnancy. Respondent's counsel has conceded that 'pregnancy is proof of a most impelling and cogent kind to support' carnal knowledge of the prosecutrix. He admits the general rule that evidence of unchastity is inadmissible under the circumstances of this case but argues his right of cross-examination of the prosecutrix as to acts of intercourse with others as being an exception to the admitted rule where pregnancy corroborates the testimony of the prosecutrix.
The alleged act of rape took place on July 11, 1956. Trial was had on December 7, 1956, at which time the mother of the girl testified her daughter was then pregnant, thus the condition of...
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