State v. Holm, 2461

• Citation: 224 P.2d 500,67 Wyo. 360
• Decision Date: 21 November 1950
• Docket Number: No. 2461,2461
• Parties: STATE, v. HOLM.
• Court: Wyoming Supreme Court

Page 500

224 P.2d 500

67 Wyo. 360

STATE, v. HOLM.

No. 2461.

Supreme Court of Wyoming.

Nov. 21, 1950.

Ernest J. Goppert, Cody, and Jerry W. Housel and Goppert & Fitzstephens, all of Cody, on the brief, for appellant.

Norman B. Gray, Atty. Gen., Marion R. Smyser, Deputy Atty. Gen. and Harry A. Thompson, Asst. Atty. Gen., for respondent.

BLUME, Justice.

The defendant Lyle W. Holm, Jr., about 19 years of age, was convicted of statutory rape of Leona Evelyn Lovercheck, a girl of the age of approximately 14 years. He was sentenced to be confined in the industrial institute near Worland, Wyoming for a period not to exceed five years. From the conviction and sentence the defendant has appealed to this court.

It appears herein that on the evening of July 28, 1948, a little after 11 o'clock at night the prosecutrix, who had been working in a theater, was on her way home at Powell, Wyoming. She was picked up in an automobile by three boys, namely, Lawrence Boyle, Jack Cruggs and the defendant, all of approximately 19 years of age, near a school house at Powell, while she was thus on her way home. Lawrence Boyle was driving the automobile. The testimony is conflicting whether she voluntarily or involuntarily entered the automobile. In any event the boys and the girl drove to Garland, Wyoming, distant about 7 miles northeast of Powell, then turned a short distance to the west and stopped. According to the testimony of the state all of the boys including the defendant had sexual intercourse with the prosecutrix, first Jack Cruggs, then the defendant and then Lawrence Boyle. They returned to Powell and took the prosecutrix home. After she arrived home she was lying in her bed and crying and made complaint of the attack upon her to her sister, mother and father, and a physician was called in to examine her that night. The boys, including the defendant, were arrested and put in jail the next day. Jack Cruggs and Lawrence Boyle were arraigned before Honorable Percy W. Metz, Judge of the District Court of the Fifth Judicial District, on August 4, 1948 and were interrogated by the judge. They pleaded guilty to the charge of rape of the prosecutrix and were sentenced to the industrial institute at Worland. The defendant refused to plead guilty, entered a plea of not guilty and was tried at Cody, Wyoming in March, 1949. The defendant and a young lady of Powell were engaged to be married on August 1, 1948, but at that time defendant was in jail but they were married in September, 1948. Various matters are assigned as error in this case.

1. (a) The mother of the prosecutrix herein testified that the latter told her on the night of July 28, 1948, that 'three boys had taken her out.' This testimony was objected to but the objection was overruled and this is assigned as error herein. In State v. Mau, 41 Wyo. 365, 285 P. 992, this court approved of the prevailing rule to the effect that while it may be permitted to be shown that the prosecutrix, in a case of rape, made a complaint immediately or soon after the alleged attack, details may not be shown under examination by the state. We are inclined to believe that the testimony related to a detail of the offense and the testimony should have been stricken. But it does not follow that the error was prejudicial. Jump v. State, 146 Neb. 501, 20 N.W.2d 375; State v. McLemore, 99 Kan. 777, 164 P. 161. The evidence in this case is unanimous, including the testimony of the defendant himself, that three boys actually took out the complainant on the evening of July 28, 1948, the time of the alleged offense herein. So we cannot see how the error of the court could have been prejudicial.

(b) Complaint is also made that the mother of the prosecutrix was permitted to testify concerning the complaint of the latter before the prosecutrix herself had testified. It is true that the order of testimony was improper for the testimony of the mother would have been incompetent and immaterial if the prosecutrix herself had not testified. State v. Mau, supra. Thus it is said by IV Wigmore on Evidence (3rd Ed.) Sec. 1136, page 226 as follows: 'Since the only object of the evidence is to repel the supposed inconsistency between the woman's present testimony and her former silence, it is obvious that if she has not testified at all, there is no inconsistency to repel, and therefore the evidence is irrelevant.' In this case, however, the prosecutrix testified and so the order of introduction of evidence cannot be held to be prejudicial herein.

2. The prosecutrix testified that she told her sister during the night of July 28, 1948, that she had been raped 'and told her by whom it was.' Counsel for the defendant moved that the latter part of the answer by stricken and that the jury be instructed to disregard 'by whom it was.' The court overruled the objection. The cases are not uniform in their holdings as to whether or not the name of the person who is charged to have committed the offense of rape may be shown in connection with the complaint made by the prosecutrix. Thus it is held that it is not error if the name of the defendant is mentioned. Younger v. State, 80 Neb. 201, 114 N.W. 170; State v. Andrews, 130 Iowa 609, 105 N.W. 215. Most cases, however, that have passed on the question consider that the naming of the defendant is part of the details and so cannot be shown. Hall v. State, 248 Ala. 33, 26 So.2d 566; Lee v. State, 246 Ala. 69, 18 So.2d 706; Creswell v. State, 61 Ga.App. 828, 7 S.E.2d 788; State v. Daugherty, 63 Kan. 473, 65 P. 695; State v. Griffin, 43 Wash. 591, 86 P. 951; State v. Tellay, 100 Utah 25, 110 P.2d 342; People v. Huston, 21 Cal.2d 690, 134 P.2d 758. If, accordingly, the testimony of the prosecutrix is equivalent to naming the defendant, the order to strike should probably have been sustained. But the testimony did not go quite that far. It would seem that taking the testimony as a whole, it means hardly anything more than that someone raped the prosecutrix and in view of that fact, we do not think that the error, if any, was prejudicial.

3. It is claimed by counsel for the defendant that the complaint made by the prosecutrix was not voluntary but was made in response to inquiries. The testimony shows that during the night of July 28, 1948, after the prosecutrix had returned home, she cried and her sister asked her what was the matter, and the complaint made by the prosecutrix was made pursuant to that inquiry. That was true also in connection with the complaint made by the prosecutrix to her mother. The question is: Was the complaint voluntary and spontaneous? In a note to Section 1761, VI Wigmore on Evidence, the author thinks that the weeping in a case of this sort is an effective complaint which led to the question and that under such circumstances, the complaint should not be considered to be involuntary. And that is the holding in Commonwealth v. Ellis, 319 Mass. 627, 67 N.E.2d 234; State v. Pearson, 49 R.I. 386, 143 A. 413; King v. Osborne, 1 K.B. (1905) 551, 556; King v. Norcott, 1 K.B. (1917) 347. In Commonwealth v. Ellis, supra [319 Mass. 627, 67 N.E.2d 236], the court said in part: 'The statements did not cease to be voluntary merely because they may have been given, in part at least, in response to questions, which were not shown to be of a suggestive or leading character.' The court in King v. Osborne, supra, said on this subject: 'It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect, and will render it inadmissible; but a question such as this, put by the mother or other person, 'What is the matter?' or 'Why are you crying?' will not do so. These are natural questions which a person in charge will be likely to put; on the other hand, if she were asked, 'Did So-and-so' * * * 'assault you?' 'Did he do this and that to you?' then the result would be different, and the statement ought to be rejected. In each case the decision on the character of the question put, as well as other circumstances, such as the relationship of the questioner to the complainant, must be left to the discretion of the presiding judge. If the circumstances indicate that but for the questioning there probably would have been no voluntary complaint, the answer is inadmissible. If the question merely anticipates a statement which the complainant was about to make, it is not rendered inadmissible by the fact that the questioner happens to speak first.' The above objection must accordingly be overruled.

4. (a) Complaint is made that the mother of the prosecutrix was permitted to testify that the doctor who attended the prosecutrix on the night of July 28, 1948, advised that the prosecutrix be given a douche, and that this douche was in fact given. To give the prosecutrix a douche under the circumstances appearing in this case was a matter that would be done in the natural course of events. We are unable to see any particular prejudice resulting from the testimony.

(b) Complaint is also made of the testimony of one Paul M. Kopriva who lived in the neighborhood of the place at Powell at which the prosecutrix got into the automobile driven by the witness Boyle. He testified that about 11:15 P. M. of the evening of July 28, 1948, which was approximately the time at which the prosecutrix entered the automobile, he heard some girl or some female cry 'help, help.' The prosecutrix testified that she screamed. The witness Kopriva may have interpreted the scream as meaning 'help, help.' Two witnesses for the defendant who were neighbors of Kopriva testified that they heard no screaming and no cry for help. We are not altogether certain that the testimony of Kopriva should have been admitted. However, it related merely to the fact as to whether or not the prosecutrix got into the automobile voluntarily...