State v. Hirsch
| Citation | 127 P.2d 764,64 Idaho 20 |
| Decision Date | 03 July 1942 |
| Docket Number | 6994 |
| Parties | STATE, Respondent, v. FELIX HIRSCH, Appellant |
| Court | United States State Supreme Court of Idaho |
CRIMINAL LAW-STATUTORY RAPE-INSTRUCTIONS.
1. In statutory rape prosecution, trial court should give an instruction to the effect that all instructions should be read and construed together, that no one of them states all of the law, but that all of them when taken together state the law which governs the case.
2. In prosecution for commission of statutory rape, on or about certain date, where court instructed that it was sufficient for state to prove that crime was committed on any date within three years prior to filing of information, refusing instruction that testimony of prosecutrix regarding other alleged acts of sexual intercourse had been admitted in evidence for purpose only of corroborating prosecutrix, and that the other independent acts of sexual intercourse could not be considered for any other purpose, was error requiring reversal. (I.C.A., sec. 7-502.)
APPEAL from the District Court of the Tenth Judicial District for Idaho County. Hon. Miles S. Johnson, Judge.
Felix Hirsch was tried on a charge of statutory rape, was convicted and appeals. Reversed and remanded with directions to grant a new trial.
Reversed and remanded with directions.
Felix Hirsch, pro se.
Bert H Miller, Attorney General, and J. R. Smead, Assistant Attorney General, for respondent.
The jury, under the well known rule, must be assumed to have found the facts necessary to support their verdict herein. Evidently they believed the prosecutrix and the physician who also testified.
(1) That it was proper to prove other instances in addition to the particular one charged, is well established. Such proof serves as corroboration of her testimony concerning the particular instance charged. That an instruction to that effect is proper is also well established, as appears from the authorities hereinafter cited.
(2) It is also proper to prove pregnancy as a result of the particular offense, also to prove the birth of a child as a result. (State v. Mason, 41 Idaho 506; State v Henderson, 19 Idaho 524; State v. Sysinger (S.D.) 125 N.W. 879; Druin v. Comm., (Ky.) 124 S.W. 856.)
Felix Hirsch was tried for the alleged commission of statutory rape--having sexual intercourse with a female under the age of eighteen years--and was convicted and appeals.
At the close of all the evidence the trial court instructed the jury that:
"In this case should you find from the evidence beyond a reasonable doubt that the defendant, Felix Hirsch, on or about the 10th day of March, 1941, in Idaho County, State of Idaho, did have sexual intercourse with one Helen Zipse, a female then and there under the age of eighteen years, the said Helen Zipse being then and there not the wife of the said Felix Hirsch, then the defendant would be guilty of rape, as charged."
Immediately following the giving of that instruction, the trial court instructed:
"
But the trial court, notwithstanding the prosecutrix had testified to numerous alleged coitions, refused to give the following instruction requested by appellant:
Respondent argues that the first above quoted instruction required the jury to find beyond a reasonable doubt that appellant committed the offense on or about "March 10th, 1941", the date charged in the information; therefore, that the jury could not have been confused as to the particular coition for which defendant was on trial, and, consequently, the refusal to give the above requested instructions was not erroneous. The trouble with that contention is that the trial court, after having given the first above quoted instruction, immediately followed with another instruction (above quoted) expressly instructing the jury that it was "not necessary for the State to prove the exact date alleged in the information"--that it was "sufficient for the State to prove that the crime charged was committed at any date within a period of three years prior to the filing of the information."
It must be kept in mind that appellant was on trial for the alleged commission of statutory rape on or about the 10th day of March, 1941; in other words, that appellant was on trial for but one offense, not numerous offenses. Nevertheless, as above pointed out, the trial court instructed the jury it could convict appellant of any act of coition occurring within a period of three years prior to the filing of the information, which, under the circumstances, amounted to trying appellant on all the acts of coition testified to by the prosecutrix. The State concedes, and correctly so, that "other offenses either before or after the particular offense at issue", "are proven for the purpose of corroboration of the prosecutrix, just as is proof of childbirth."
The trial court having refused to instruct the jury, as requested, that "the commission of any other offenses at other times has been (admitted) for the purpose only of corroboration and to show the relations and familiarity of the parties", one juror could have found appellant guilty of the commission of statutory rape on or about March 10, 1941, while another juror could have found he was not guilty of having committed the offense on that date, but was guilty of having committed statutory rape on some other date, and so on, thus making it quite impossible to determine whether all twelve jurors actually found appellant guilty of having committed the offense at the time charged in the information. In other words, under the instructions given by the court, above quoted, it cannot be determined that all twelve jurors found appellant guilty of the particular offense for which he was on trial.
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