State v. Hines

• Decision Date: 09 March 1927
• Parties: STATE, Respondent, v. WILLIAM HINES, Appellant
• Court: Idaho Supreme Court

254 P. 217

43 Idaho 713

STATE, Respondent, v. WILLIAM HINES, Appellant

Supreme Court of Idaho

March 9, 1927

CRIMINAL LAW-RAPE-LACK OF CORROBORATION-ERRONEOUS INSTRUCTIONS.

1. Instruction, in prosecution for rape, on purpose for which evidence of defendant's having committed other similar acts had been admitted, held erroneous in assuming that there was any other evidence showing commission of acts of similar nature.

2. The court is not authorized to assume injurious facts against an accused in charging the jury.

3. Instruction in rape prosecution that prosecutrix's testimony would be sufficient to warrant conviction without corroborating circumstance or evidence, unless testimony was contradictory, or reputation for truth impeached, held in conflict with instruction clearly stating the law and requiring corroboration in addition to unimpeached character for chastity and truth, and constituted error.

4. Judgment of conviction of rape, based on testimony of prosecutrix alone, cannot be sustained in any event, unless circumstances surrounding commission of offense are clearly corroborative of her statements.

5. Whether or not testimony of prosecutrix, in prosecution for rape, is clearly corroborative of other facts and circumstances, is in the first instance a question for the jury.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Defendant appeals from a judgment of conviction of rape. Reversed and remanded.

Reversed and remanded.

Delana & Delana and E. V. Larson, for Appellant.

An instruction assuming that the evidence shows another like offense, or assuming that the evidence establishes a certain fact, when the evidence does not prove or tend to prove the similar offense, or establish such fact, is clearly erroneous, and is an invasion of the province of the jury by the court. (Arnold v. State (Tex. Cr.), 83 S.W. 205; Homer v. State (Tex. Cr.), 65 S.W. 371; Sischo v. United States, 296 F. 696; State v. Herbert, 92 N.J.L. 341, 105 A. 796; Barber v. State, 125 Miss. 138, 87 So. 485; People v. Parish, 59 Cal.App 302, 210 P. 633; State v. Dale, 110 Wash. 181, 188 P. 473; State v. Wilder, 98 Ore. 130, 193 P. 444.)

Where two instructions are given, covering the same subject matter one correctly and the other incorrectly stating the law, and such instructions are irreconcilable, and the facts are such that under one of such instructions the jury could find the defendant guilty, and under the other it could not properly do so, the giving of such instruction is prejudicial error. (State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Short, 39 Idaho 446, 228 P. 274; State v. Anderson, 6 Idaho 706, 59 P. 180; Force v. State (Neb.), 179 N.W. 387; Gazley v. State, 17 Tex. App. 267; People v. Benson, 6 Cal. 221, 223, 65 Am. Dec. 506.)

In a prosecution for statutory rape, where the defendant positively and explicitly denies the statements of the prosecutrix, or where her statement of what occurred at the time and place she asserts the crime was committed is improbable, her testimony is insufficient to sustain a conviction, unless the circumstances surrounding the commission of the offense are clearly corroborative of her statements. (See cases last cited.)

Frank L. Stephan, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

Instruction No. 9 is a correct statement of the law. (State v. Lancaster, 10 Idaho 410, 78 P. 1081.)

All of the instructions must be read and considered together. (State v. Jurko, 42 Idaho 319, 245 P. 685.)

Where two instructions are conflicting and the facts are such that a jury should find a defendant guilty under the correct one, or both, the error in giving the incorrect one is harmless. (State v. Bowker, 40 Idaho 74, 231 P. 706.)

An accused may be convicted upon the uncorroborated testimony of the prosecutrix where her reputation for truth and chastity is unimpeached and the facts and circumstances surrounding the commission of the offense clearly corroborate the statements of the prosecutrix. (State v. Mason, 41 Idaho 506, 239 P. 733; State v. Short, 39 Idaho 446, 228 P. 274.)

Where there is substantial evidence to support the verdict it will not be disturbed on appeal. (State v. Shepard, 39 Idaho 666, 229 P. 87; State v. Bouchard, 27 Idaho 500, 149 P. 464.)

TAYLOR, J. Wm. E. Lee, C. J., and T. Bailey Lee, J., concur. BUDGE, J., GIVENS, J., Dissenting.

OPINION

TAYLOR, J.

Defendant appeals from a judgment of conviction of rape committed upon a female under the age of eighteen years. Appellant assigns three errors: (1) The giving of an erroneous instruction, No. 9; (2) the giving of two instructions upon the question of the necessity of corroboration, "because they are contradictory and confusing, cannot be reconciled and do not correctly state the law"; (3) that the evidence is insufficient to justify the verdict or support the judgment.

Instruction No. 9 complained of is as follows:

"You are instructed, gentlemen, that certain evidence has been introduced in this case which may tend to show that the defendant committed other acts of a similar nature to the one charged in the information upon the prosecutrix. You are charged that such evidence has been admitted in this case not for the purpose of proving a different offense, for the defendant can only be convicted of the specific offense charged in the information, but for the sole purpose of showing the relation and familiarity of the parties and as corroborative of the prosecutrix's testimony concerning the particular act relied upon for the conviction."

This instruction was erroneous in assuming that there was any other evidence tending "to show that the defendant committed other acts of a similar nature to the one charged in the information upon the prosecutrix." There was no evidence of any other sexual intercourse or acts which could be properly termed "of a similar nature." While this instruction might not, standing alone, be reversible error, it was erroneous. It was not called for or authorized by any fact in the case. It assumed facts as having been proved that were not shown to exist.

"The court is not authorized to assume injurious facts against an accused in charging the jury." (Arnold v. State (Tex. Cr. App.), 83 S.W. 205.)

See, also, Homer v. State (Tex. Cr. App.), 65 S.W. 371; Sischo v. United States, 296 F. 696.

Appellant assigns as error the giving of instructions Nos. 6 and 7. Instruction No. 6 told the jury that the testimony of the prosecutrix would be sufficient of itself to warrant a conviction "without other corroborating circumstances or evidence," unless her testimony was contradictory or her reputation for truth impeached, and that it was only in such case that she must be corroborated by other evidence of facts and circumstances which of itself, "without the aid of her testimony, tends to connect the accused with the commission of the offense."

State v. Pettit, 33 Idaho 326, 193 P. 1015, is cited as authority for a similar instruction, but it was not there attacked upon the ground stated here, and was accompanied by another as follows:

"You are instructed that in the case of rape it is not essential that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense, and if the jury believe from the testimony of the prosecutrix, and the corroborating circumstances, and facts testified to by other witnesses, that the defendant did make the assault as charged, the law would not require that the prosecutrix should be corroborated by other witnesses as to what transpired at the immediate time and place when it is alleged the assault was made."

This latter was declared "a correct statement of law," but that decision cannot be said to be authority that the testimony of the prosecutrix alone is sufficient upon which to convict, for it cites in its support Dunn v. State, 58 Neb. 807, 79 N.W. 719, where a charge of rape and attempt to commit rape were made in two counts and the defendant convicted of the attempt, in which the court, in passing upon this point, said:

"While the law in this class of cases requires that the prosecutrix shall be corroborated, it does not demand that the corroboration shall be by direct evidence of the particular fact constituting the crime. Proof of incriminating circumstances is sufficient."

Thus, the Pettit case cannot be said to have departed from the rule laid down in all other Idaho decisions.

Assuming, for the sake of argument, that the testimony of the prosecutrix was not contradictory, and that her reputation for truth was unimpeached, instruction No. 6 advised the jury that it might be sufficient "without other corroborating circumstances or evidence," when all of the decisions of this court demand, in such case, in addition to an unimpeached reputation for truth and chastity, that the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix.

"A judgment of conviction of rape based upon the testimony of the prosecutrix alone cannot be sustained in any event unless the circumstances surrounding the commission of the offense are clearly corroborative of her statements." (State v. Short, 39 Idaho 446, 228 P. 274.)

See, also, State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Anderson, 6 Idaho 706, 59 P. 180.

Instruction No. 7 correctly stated the law in accordance with the foregoing decisions, that in addition to an unimpeached character for chastity and truth, there must be corroboration.

In State v. Bowker, supra, the giving of two contradictory instructions upon this same point, one correct the other incorrect, but...