State v. Jones

• Decision Date: 27 May 1941
• Docket Number: 6874
• Citation: 62 Idaho 552,113 P.2d 1106
• Parties: STATE, Respondent, v. J. W. JONES, Appellant
• Court: Idaho Supreme Court

113 P.2d 1106

62 Idaho 552

STATE, Respondent, v. J. W. JONES, Appellant

No. 6874

Supreme Court of Idaho

May 27, 1941

CRIMINAL LAW-RAPE-EVIDENCE, SUFFICIENCY OF-CORROBORATION-WITNESSES-INSTRUCTIONS.

1. In prosecution for statutory rape, the very widest latitude compatable with our somewhat restricted and technical rules of evidence should be allowed defendant in his cross-examination of witnesses for the state, especially with reference to the prosecuting witness.

2. It is gross error and subversive of substantial justice to allow a party to litigation to introduce ex parte and extrajudicial statements not made in the presence or by the authority of the party to be bound, and it is equally erroneous to allow such questions to be asked by way of laying a foundation for impeaching a witness.

3. Witnesses can only be impeached by proof of contradictory statements of a material fact.

4. In rape prosecution, where witness for defendant was asked on cross-examination whether witness had told certain individual to say that she and another had been with defendant, for the purpose of laying foundation to impeach the witness objection was improperly overruled, since question did not comply with statute by fixing time, place or persons present when statement was supposed to have been made. (I. C. A. sec 16-1210.)

5. In prosecution for statutory rape, recross-examination of defendant regarding arrest on preceding Sunday for drunken driving was improper because relating to offense in no way linked with crime in question.

6. In prosecution for statutory rape, evidence that pair of bloomers was found in defendant's automobile by deputy sheriff did not sufficiently corroborate testimony of prose- cutrix, in absence of testimony by prosecutrix identifying the bloomers as those which she claimed defendant removed from her, particularly where former wife of defendant testified that the bloomers belonged to her or her daughter and prosecutrix when thereafter called to the witness stand was not asked whether they belonged to her.

7. In prosecution for rape, an opportunity to commit the offense does not constitute the corroboration required, and to so hold would authorize conviction upon uncorroborated testimony of prosecutrix, aided only by evidence of an opportunity to commit the crime.

8. Instruction should have been given that all of instructions should be read and considered together, that no one of them states all of the law of the case, or states the law completely as to the whole case, but that all of them when taken together state the law which governs the case and which is to be applied to the facts, as the jury may determine the facts to be, and which must guide and direct them in their deliberation in arriving at a verdict.

APPEAL from the District Court of the Eleventh Judicial District for Minidoka County. Hon. T. Bailey Lee, Judge.

Prosecution for statutory rape. Judgment of conviction of assault with intent to commit rape. Reversed and remanded with directions to grant a new trial.

Reversed and remanded with directions.

Anderson, Bowen & Anderson, for Appellant.

Where the testimony of the prosecutrix in a rape case is contradictory and her story as to what occurred at the time and place the crime was committed is improbable, her uncorroborated testimony is not sufficient to uphold a verdict of guilty, or to support a judgment of conviction thereon. (State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Baker, 6 Idaho 496, 56 Idaho 81; State v. Andrus, 29 Idaho 1, 156 P. 421; State v. Clark, 27 Idaho 48, 146 P. 1107; 33 Cyc. 1491; People v. Benson, 6 Cal. 223.)

Judgment of conviction of rape, based alone upon testimony of prosecutrix, cannot be sustained unless surrounding circumstances clearly corroborate her, and her testimony is probable, unimpeached, and clearly corroborative of her sworn statements supporting the crime charged. (State v. Short, 39 Idaho 446, 228 P. 274; State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Trego, 25 Idaho 625, 138 P. 1124.)

Bert H. Miller, Attorney General, and J. R. Smead, Robert M. Kerr, Jr., and M. Casady Taylor, Assistant Attorneys General, for Respondent.

"By corroboration is meant evidence other than that of the prosecutrix which, in itself and without the aid of her testimony, tends to connect the accused with the commission of the offense." (Emphasis ours.) (State v. Andrus, 29 Idaho 1, 12; Nichols, App. Ev., vol. 4, sec. 70.)

As to the articles found in the appellant's car, and their corroborating force, see National Cereal Co. v. Alexander, (Kan.) 89 P. 923.

Where a defendant's other testimony cannot reasonably be reconciled with his denial of performance of the act constituting the crime, that in itself corroborates the prosecutrix. Self-incriminating evidence, voluntarily given, is very persuasive. This is submitted as self-evident.

By "impeachment" as used in the rule here sought to be invoked by the appellant, with reference to the alleged impeachment of the prosecutrix, is meant, not a mere conflict in the evidence, but proof of contradictory statements by her made out of Court, conviction of a felony, bad reputation for veracity, or the like, none of which proof was here attempted. (State v. Nelson, (Wash.) 43 P. 637; Krull v. Arman, (Nebr.) 192 N.W. 961, 962.)

Cross-examination is properly limited to the matters stated by the witness on direct examination and to the time or times covered or included on direct; and cross-examination on immaterial matters is not permissible. (I. C. A., sec. 16-1205; State v. Larkins, 5 Idaho 200; State v. Anthony, 6 Idaho 383, 388; State v. Askew, 32 Idaho 456, 461; State v. Wetter, 11 Idaho 433.)

HOLDEN, J. Morgan and Ailshie, JJ., concur. GIVENS, J., Budge, C. J., (Dissenting).

OPINION

HOLDEN, J.

J. W. Jones was tried for the alleged commission of the crime of statutory rape--having sexual intercourse with a female under the age of eighteen years--was convicted of an assault with intent to commit rape, and appeals.

It appears from the testimony of prosecutrix she was eating breakfast at a restaurant in Rupert at about seven o'clock in the morning of May 13, 1940, when appellant came in. Shortly thereafter prosecutrix and appellant met on the street, and he asked her where she was going, to which she replied she was going to visit some friends, and that he then volunteered to take her in his car. Thereupon she got into the car. After traveling a short distance prosecutrix informed appellant he was on the wrong road. He, nevertheless, continued to drive in the direction of Minidoka, about 15 miles from Rupert. Prosecutrix testified when they approached the village of Acequia, about half-way between Rupert and Minidoka, appellant stopped the car along the side of the oiled highway, took her pants off, forced her knees open and accomplished sexual intercourse; that appellant then gave her a drink of whiskey, took one himself and drove on to Minidoka; that when they arrived at Minidoka appellant stopped the car in front of the Sears Hotel, where he lived; that following an inquiry by prosecutrix as to where there was a bathroom, he replied there was one in the hotel or depot, took her by the wrist and the two went upstairs to his rooms; that appellant got some cornflakes and milk which they ate; that she again inquired about a bathroom and appellant showed her the one in the hotel that when she came back appellant took off all her clothes undressed himself, and threw her on the bed and again had sexual intercourse with her, after which appellant went to sleep and she dressed, took his watch, $ 2 of his money, his car keys, and went downstairs and left with the car.

It is earnestly contended the trial court erred in sustaining objections to questions asked prosecutrix on cross-examination as to how long it had been since she was home with her parents; what she did with defendant's watch; how long she had had the car before the officers came and got her; whether she saw her father and mother and reported the alleged incident with appellant to them; where she had stayed the night before; how long it had been since she had stayed at home with her parents, to live with them; when was the first time she had told anyone about the trip with appellant; whether or not, since the complaint was filed, she told her parents appellant never did anything to her, and as to whether or not she talked with her parents after that.

This contention presents the question as to the latitude which should be allowed on cross-examination. In Alford v United States, 282 U.S. 687, 692-3, 75 L.Ed. 624, 627-8, 51 S.Ct. 218, the U.S. Supreme Court held the permissible purposes of cross-examination, among others, are "that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased," that "counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general apply. (Citing cases.) It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. (Citing cases.) To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in...