State v. Irwin

Decision Date04 February 1903
Citation71 P. 608,9 Idaho 35
PartiesSTATE v. IRWIN
CourtIdaho Supreme Court

MISCONDUCT OF PROSECUTOR-IMPUTING OTHER CRIMES TO DEFENDANT-ADMISSION OF EVIDENCE - PREJUDICIAL ERROR - DUTY OF PROSECUTOR.-Where an assistant prosecutor asks the son of the accused, on cross-examination, if he had not stated to A. that he suspected his father of having committed a similar offense with other girls, one a member of his family, and that such conduct on the part of the accused caused the death of witness' mother, and that if at such conversation witness did not cry, and say, "I can't go against my father even if he is guilty," and repeatedly asks substantially the same questions, such conduct of the prosecutor is reversible error. Such questions are improper cross-examination, and should not be allowed under the guise of impeaching the witness. It is the duty of the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is submitted to the jury; and above all things he should guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced. He should never seek by any artifice to warp the minds of the jurors by inference and insinuations.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Reversed and remanded.

As to the alleged misconduct on the part of the prosecuting attorney, I cite the following authorities as bearing upon the question: 8 Am. Ency. of Pl. & Pr. 109, 116-118, and cases cited; Siberry v. State, 133 Ind. 677, 33 N.E. 681, 21 Am. Ency. of Pl. & Pr. 975; Ferguson v. Hirch, 54 Ind. 337; Combs v. State, 75 Ind. 215; People v. Lee Sare Bo, 72 Cal. 623, 14 P. 310; People v. Goldenson, 76 Cal. 328, 353, 19 P. 161; 2 Am. Ency. of Pl. & Pr. 73, note 4; Tuller v. Ginsburg, 99 Mich. 137, 57 N.W. 1099. Time of making objection: Choen v. State, 85 Ind. 209; State v. Hawkins, 18 Or. 476, 23 P. 475; Commonwealth v. Mudget, 174 Pa. 211, 34 A. 588; Norris v. State, 32 Tex. Cr. Rep. 172, 22 S.W. 592. Necessity of making objection: Commonwealth v. Tripp, 157 Mass. 515, 32 N.E. 905; People v. Biles, 2 Idaho 114, 6 P. 120; State v. Haverly, 4 Idaho 484, 42 P. 506.

AILSHIE, J. Sullivan, C. J. and Stockslager, J., concur.

OPINION

AILSHIE, J.

The defendant was convicted of the crime of rape, alleged to have been committed on one Dora Irwin, a female child, who at the time of the alleged offense was of the age of fourteen years and eleven months, and he was thereupon sentenced to serve a term of ten years in the state penitentiary.

The offense is alleged to have been committed at Meadows, in the county of Washington, on the fourth day of July, 1902. Defendant appeals from the judgment, and from an order denying his motion for new trial, and in this court the two principal questions, as presented for our consideration, are: "1. That the court erred in refusing to instruct the jury that it was necessary for the prosecution to prove that at the time of the alleged offense the prosecutrix, Dora Irwin, was not the wife of the defendant, and that the court erred in refusing to grant a new trial upon the ground that the evidence did not show that said Dora Irwin was not at the time of the commission of the alleged offense the wife of defendant. 2. Misconduct on the part of the assistant prosecutor in the repeated asking of certain questions on cross-examination of the witness Daniel Irwin imputing to the defendant other like crimes, and to the ruling of the court in permitting such questions to be answered."

Counsel for defendant contend that under the provisions of section 6765 of the Revised Statutes, as amended, it is necessary for the information to allege that the female upon whom the offense is charged to have been committed was not at the time thereof the wife of the defendant, and that the court should have instructed the jury that it is necessary for the state to prove such fact the same as any other fact in the case. We are not called upon in this case to pass upon that question, for the reason that the information charges that the offense was committed upon "one Dora Irwin, a female, not the wife of him, the said William Irwin," and the court instructed the jury that such fact must be proven and we think it was proven. In instruction No. 8 we find the following language: "To warrant a conviction of the defendant, therefore, of the crime charged in the information, to wit, rape, the state must prove beyond a reasonable doubt: . . . . 2. That at said time the said Dora Irwin was a female child under the age of eighteen years, and not the wife of the defendant." We have carefully examined the record in this case, and think the evidence as given by the defendant himself sufficiently establishes the fact that the said Dora Irwin was not the wife of defendant. We find in the record the defendant referring to the prosecutrix as "Miss Dora" and "my granddaughter" and "the girl," and we find her, on the other hand, referring to the defendant as "my uncle Bill."

The second contention of the defendant, however, is a much graver question, and one on which we have examined many authorities before arriving at the conclusion which we are compelled to announce in this case. The defendant called his son, Daniel Irwin, as a witness, and examined him, and thereupon he was cross-examined by the assistant prosecutor, and, among other things, we find that in the course of such cross-examination the following questions were put, and answers, objections and rulings by the court were made: "Q. Did you not, in the course of that conversation with Mary Phillips, say also, in substance and effect, that you suspicioned your father of having done the same thing with other girls, mentioning one of your family? A. No, sir. Q. You swear to that? A. Yes, sir. Q. Did you not on that occasion cry bitterly? A. I might have shed a few tears; but very few, I think. Q. Did you not, in the course of that conversation with Mary Phillips, say also, in substance and effect, that your father's actions with the other girl--with the member of the family referred to--had caused your mother's death? Mr. Irwin: We object to that as immaterial, incompetent, and irrelevant, and not proper cross-examination of the witness. (Objection sustained.) Q. Did you see Miss Phillips since you have been here in Weiser? A. Yes, sir. Mr. Irwin: At this time we wish to take an exception to the special counsel for the prosecution in propounding questions to the witness, as being an invasion of the rights of the defendant, and for the purpose of attempting to prejudice the rights of the defendant in this action, being a matter not relevant, and pertaining to no matter under discussion before the court. The Court: The court sustains objections to such questions as the court deems improper. Mr. Irwin: I am not making any objections as regards the court. I am taking an exception particularly to the conduct of counsel in that particular matter in embodying in his questions the same elements to which the court has sustained objections in the preceding question. Q. I will ask you if you saw Miss Phillips in this town on the evening of March 12th of the present year? A. I don't know. I believe I did. I have seen her several times since I have been in town. I am not positive of the date. Q. I will ask you whether or not, on the evening of March 12, 1902, in room 19 of the Weiser Hotel, in this county and state, you said to Mary Phillips, in the course of a conversation had between you and Mary Phillips in that place and on that occasion, the conversation being directed to the question of your father's guilt or innocence upon this charge, in substance and effect as follows: 'I can't go against my father, even if he is guilty.' Did you so state? Mr. Irwin: We object to that question as immaterial, irrelevant, and incompetent. (Objection overruled, to which ruling of the court counsel for defendant excepts.) Q. Did you so state in substance and effect? (No answer.) Q. Again I ask you whether you stated in substance and effect--I will repeat: 'I cannot go against my father, even if he is guilty'? A. No, sir; I did not. Q. Nothing to that effect? A. No, sir. Q. Did you cry there on that occasion in talking to her? A. No, sir. Q. You didn't cry on that occasion in talking to her? A. No, sir. She was there for the information she didn't get. Q. You was playing detective again, was you? A. No, sir; I was not. She was. Q. How do you know she was? A. I could tell from the lay of things from start to finish. She invited me to the room. I went there. Q. Did she say on that occasion that she thought your f...

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