State v. Hines, 2821
| Decision Date | 06 November 1958 |
| Docket Number | No. 2821,2821 |
| Citation | 331 P.2d 605,79 Wyo. 65 |
| Parties | The STATE of Wyoming, Plaintiff and Respondent, v. John R. HINES, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
Cuba Y. Hollaway, Newcastle, for appellant.
Thomas O. Miller, Atty. Gen., Ralph M. Kirsch, Sp. Asst. Atty. Gen., Chester S. Jones, County and Pros. Atty. of Weston County, Newcastle, for respondent.
Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.
This is an appeal by John R. Hines who was convicted in the District Court of Weston County, Wyoming, of the crime of statutory rape and of the fact that he was an habitual criminal by reason of two prior convictions of a felony in the State of Missouri.
A criminal information was filed in the District Court of Weston County, Wyoming, on March 1, 1957, charging the defendant with feloniously and unlawfully having carnal knowledge of one Edna Brown, a female child under the age of eighteen years, to wit, the age of fourteen years. The information also charged the defendant under the Habitual Criminals Act of this state alleging that the defendant was convicted of a felony, to wit, making and passing bogus checks, on September 7, 1948, in the Circuit Court of the County of Sullivan, State of Missouri, and that the defendant was again convicted of a felony, namely for forgery, on February 26, 1952, in the Circuit Court of Putnam County, Missouri. Attached to the information was an affidavit made by the prosecutrix, Edna Brown, wherein she stated that in June 1955 she was fourteen years of age and that John Hines had sexual intercourse with her on or about June 20, 1955. The affidavit is dated February 28, 1957. On March 2, 1957, a warrant was issued for the arrest of the defendant. The defendant pleaded not guilty. The case was tried commencing April 4, 1957. The jury found the defendant guilty in the form and manner charged in the information and in answer to a special interrogatory found that the defendant was the identical person who was convicted of the two felonies in the State of Missouri as heretofore mentioned. On April 18, 1957, the court sentenced the defendant on the verdict of guilty and the finding that he was an habitual criminal and directed that he be confined in the penitentiary of this state for a period of not less than ten years and not more than fifty years in accordance with § 9-109, W.C.S.1945. From that sentence the defendant has appealed. Counsel who acted on behalf of the defendant in the trial of this case subsequently withdrew from the case and Cuba Y. Hollaway was appointed in their stead. On application to this court, he was appointed as counsel for the defendant under the provisions of Ch. 180, § 1, S. L. of Wyoming, 1953, because of the fact that the defendant had insufficient funds for prosecuting this case in this court.
A concise statement of the essential facts in this case is contained in the brief of counsel for the defendant. We adopt it with a slight modification. It is as follows: For some time prior to June 20, 1955, the defendant, John R. Hines, was acquainted with one female minor girl named Edna Brown, who lived in Newcastle, Wyoming. The defendant on several occasions was in a car with this Edna Brown and other people and they took automobile rides together around and in Newcastle, Wyoming. The defendant and others, including Edna Brown, went to the drive-in theater in Newcastle, Wyoming, on at least one occasion together. The complaining witness, Edna Brown, was fourteen years of age on June 20, 1955, and she testified that on or about that date the defendant had sexual intercourse with her in his house at Newcastle, Wyoming. Others present on that night were Bobby Munday and Donna Dickenson. The pertinent facts leading up to this event were that the defendant and Bobby Munday agreed to purchase a pair of cowboy boots for each of the girls, Edna Brown and Donna Dickenson, and they were to purchase these boots at the J. C. Penney store at Newcastle, Wyoming, on or about June 18, 1955. The complaining witness stated that the consideration for the boots was her having intercourse with the defendant. The defendant testified that the consideration for the boots was cleaning his house as a service for the boots.
On or about June 20, 1955, the defendant and the witness, Bobby Munday, were at their home in Newcastle, Wyoming. Along about dusk the complaining witness, Edna Brown, and the other witness, Donna Dickenson, came to the house of the defendant and both came into the house. These girls came into the living room of the house which was a small room containing a bed and a couch. The defendant and the complaining witness, Edna Brown, lay down upon the bed in the living room and the witnesses Bobby Munday and Donna Dickenson got on the couch. There was another small boy named Bernie Munday present who was told to go outside and stay, which he did.
The facts of what happened are contradictory but the complaining witness testified that the defendant undid her blue jean pants which she had on and pulled them down from her waist and that he unbuttoned his own pants and had intercourse with her. She did not testify that she saw the defendant's penis. The defendant said he did not have intercourse with her. The witness, Bobby Munday, stated that he was on the couch with the witness, Donna Dickenson, and that he had intercourse with her and that the defendant did have intercourse with Edna Brown. However, the witness, Donna Dickenson, said that Bobby Munday did not have intercourse with her on the couch but that the defendant and Edna Brown did have intercourse on the bed. (End of statement).
The information was filed by the County and Prosecuting Attorney for Weston County, Wyoming, against the defendant on March 1, 1957. The information charged the defendant with the crime of statutory rape and also charged the defendant under the habitual criminal statutes of the State of Wyoming. The complaining witness did not tell anyone of the alleged sexual intercourse she had with the defendant until about March 1956 when she told one of her teachers at the school in Newcastle. She told her teacher after a note was intercepted in the classroom. The note was not produced.
The State of Wyoming presented into evidence a sentence and judgment out of the Circuit Court of Sullivan County, Missouri, stating in part that the defendant, having entered a plea of guilty, be confined in the penitentiary of the State of Missouri for a period of three years on the charge of making and passing bogus checks. The state put into evidence a certified copy of the criminal sentence and judgment issued out of the Circuit Court of Putnam County, Missouri, wherein the defendant was convicted of the crime of forgery and, having pleaded guilty, was sentenced to be confined in the penitentiary of the State of Missouri for a period of three years. State's Exhibit 3, a certified copy of the defendant's record from the intermediate reformatory, Jefferson City, Missouri, including fingerprint chart and pictures, was admitted without objection.
1. Counsel for defendant contends that the evidence in the case is not sufficient to convict the defendant. We think that counsel's own statement of the facts heretofore set out refutes that contention. Counsel lays stress on the fact that the prosecuting witness did not reveal her intimacy with defendant for many months thereafter, but that fact merely affected her credibility which was for the jury to determine and in connection with which the court gave an instruction as hereinafter noted.
Counsel says that there must be penetration of the genital organs of the female in order to constitute sexual intercourse. That is true. State v. Wilson, 32 Wyo. 37, 228 P. 803. Counsel strenuously contends that the evidence in this case was not sufficient to show such penetration. That fact may be shown by circumstantial evidence. Taylor v. State, 111 Ind. 279, 12 N.E. 400. The prosecutrix in this case testified positively that penetration took place. We think the jury was justified in finding that she was old enough to know whether that was true or not. The prosecutrix was further corroborated by two witnesses. It is true that these witnesses could not actually see the penetration but the facts related by them as to the position of the defendant and the prosecutrix on the bed and the length of time they remained in that position fully justified the conclusion on the part of the witnesses as well as the jury that sexual intercourse was actually completed.
The foregoing contentions of counsel for the defendant must be and are overruled.
2. Counsel for defendant further states:
'The Defendant contends that during the trial of this case before the District Court that the Trial Judge, throughout the trial, made comments, interposed questions, interrogated witnesses and in general conducted the trial in a manner prejudicial to the rights of the defendant.'
Some fourteen pages of counsel's brief are occupied by the various remarks and statements of the court which are thought to be prejudicial. We have examined all of these carefully. The objections made herein as to most of the matters of which complaint is made are not well taken. It may well be that in a few instances the court might well have refrained from the remarks which he made. Some of the remarks sounded as though the court had become impatient with the attorneys for the defendant and the remarks were perhaps intended as a rebuke of them. However, none of the matters referred to by counsel for the defendant were serious enough to prejudice the defendant. In State v. Schmidt, 141 Wash. 660, 252 P. 118, 121, the court stated as follows:
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GP, Matter of
..."sexual intercourse" be effected in the legal sense there must be penetration "of the genital organs of the female." State v. Hines, 79 Wyo. 65, 74, 331 P.2d 605 (1958). However, "sexual intercourse" within the contemplation of this rule of law does not necessarily assume that degree of pen......
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King v. State
...and, therefore, the instruction was appropriate. This Court approved an instruction similar to Instruction No. 8 in State v. Hines, 79 Wyo. 65, 331 P.2d 605 (1958), cert. denied 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961), and the instruction is taken virtually verbatim from WPJIC § ......
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Lopez v. State
...Wyo., 470 P.2d 372, reh. den., 474 P.2d 127 (1970), cert. den., 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218 (1971); State v. Hines, 79 Wyo. 65, 331 P.2d 605 (1958), cert. den., 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961); State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948); Strand v. Stat......
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Downs v. State
...Kennedy v. State, Wyo.1970, 470 P.2d 372, reh. den. 474 P.2d 127, cert. den. 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218; State v. Hines, 1958, 79 Wyo. 65, 331 P.2d 605, cert. den. 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261. See Rule 609, W.R.E., applicable after the within case was ...