State v. Koch, 2380

• Decision Date: 27 January 1948
• Docket Number: 2380
• Citation: 189 P.2d 162,64 Wyo. 175
• Parties: THE STATE OF WYOMING, Plaintiff and Respondent, v. CAROL F. KOCH, Defendant and Appellant
• Court: Wyoming Supreme Court

189 P.2d 162

64 Wyo. 175

THE STATE OF WYOMING, Plaintiff and Respondent, v. CAROL F. KOCH, Defendant and Appellant

No. 2380

Supreme Court of Wyoming

January 27, 1948

APPEAL from District Court, Sublette County; H. R. CHRISTMAS, Judge.

Carol F. Koch was convicted of having carnal knowledge of a girl under eighteen years, and he appeals.

Affirmed.

Ivan S Jones and Patrick J. Quealy, both of Kemmerer, for appellant.

Norman B. Gray, Atty. Gen., and John S. Miller, Deputy Atty. Gen for respondent.

For the Defendant and Appellant, the cause was submitted upon the brief and also oral argument of Ivan S. Jones and Patrick J Quealy, both of Kemmerer, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

On a trial for rape, where the evidence is conflicting the trial court should, in its instructions, caution the jury that prejudice is liable to be aroused against the accused, on account of the heinous nature of the crime charged. 44 Am Jur. 979, Sec. 122.

From the days of Lord Hale to the present time, no case has ever gone to the jury, upon the sole testimony of the prosecutrix, unsustained by facts and circumstances corroborating it, without the court warning them of the danger of a conviction on such testimony. Cautionary instructions of this character are proper in rape cases, either when the prosecutrix is a child of tender years, or when her testimony is uncorroborated. People v. Vaughn, 1933, 131 Cal.App. 265, 21 P. 2d. 438.

It is competent to prove the physical conditions of a girl immediately after the outrage, as tending to prove the commission of the offense, but evidence of her condition three months thereafter was too remote to throw any light on the real issues in the case. Its only effect could have been to show an aggravation of the offense, and excite abhorrence in the mind of the jury, and thereby increase the punishment. State v. Houx, 1892, 109 Mo. 654, 19 S.W. 35, 32 Am. St. 686.

A conviction for rape may be had upon the uncorroborated testimony of the prosecutrix but such conviction would only be warranted where the reputation of the prosecutrix for chastity is unimpeached. Tway v. State, 7 Wyo. 74, 50 P. 188. State v. Anderson (Idaho 1899) 59 P. 180; State v. Short, (Idaho 1924), 228 P. 274.

The ordinary rule is, that where there is any evidence to support the verdict, or where the evidence is conflicting, the appellate court will not examine the record for the purpose of determining the weight of such evidence, and the verdict approved by the trial judge will stand; but cases of the character of the one at bar have always been held an exception to such rule. Sir Matthew Hale, 1 Pleas of the Crown (Ed. 1788) p. 363.

For the Plaintiff and Respondent, the cause was submitted upon the brief of Norman B. Gray, Attorney General, and John S. Miller, Deputy Attorney General, both of Cheyenne, Wyoming, and also oral argument by Mr. Miller.

POINTS OF COUNSEL FOR RESPONDENT

It appears to be settled in Wyoming, then, that if the jury are otherwise adequately instructed, the appellate court will not hold that the discretion of the trial judge was wrongly exercised in the refusal of a cautionary instruction. Strand v. Staet, 36 Wyo. 78, 252 P. 1030.

Prosecutrix testified that appellant had, previous to the act for which he is tried, had carnal knowledge of her. Where, when, and how often cannot clearly be ascertained from her testimony. Appellant contends that receiving this testimony, over his objection, was error. That such testimony may be heard by the jury seems settled by the authorities in this state. State v. Slane, 48 Wyo. 1, 41 P.2d 269; State v. Quirk, 38 Wyo. 462, 268 P. 189; Strand v. State, supra.

In most jurisdictions it is recognized that in prosecutions for statutory rape, or rape of a female under the age of consent or otherwise unable to consent, evidence is admissible which tends to show prior offenses of the same kind committed by the defendant with the prosecuting witness, such evidence being admitted in corroboration of the offense charged or to prove identity, and not to prove a separate offense. 167 A. L. R. 565.

Whether or not evidence is too remote is question for trial court, and remoteness in point of time goes to the weight, and not to the admissibility. 1 Wharton's Criminal Evidence 587 (11th Ed.); Commonwealth v. Colangelo, 256 Mass. 165, 152 N.E. 241; State v. Smith, 46 Idaho 8, 265 P. 666;

Testimony as to general reputation of the prosecutrix for chastity is material only when the defense involves a claim of present consent to the act charged in the indictment, because such testimony is admissible only for the purpose of showing a probability of consent to that act. It does not extend to or affect her general credibility as a witness, nor is it competent as a substitute for or in lieu of testimony as to the general reputation of the prosecutrix for truth and veracity. Nickels v. State, 90 Fla. 659, 106 So. 479.

It is not always necessary to confine the instruction to the exact date. The purpose of the rule, as may be gathered from the authorities, is to permit the conviction for only one crime, and to distinguish the date which the state elects from the other dates on which crimes of a similar nature are shown by the evidence to have been committed. And, if that can be and is done in a manner other than by stating the exact date as above mentioned, that would doubtless fulfill the purpose of the rule. State v. Slane, supra.

The testimony of the prosecutrix as to the main fact, i. e., that defendant was the person who had carnal knowledge of her, was not corroborated. A conviction may be had on the uncorroborated testimony of the prosecutrix. Tway v. State, 7 Wyo. 74, 50 P. 188.

BLUME, Justice. RINER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Carol K. Koch, defendant in this case was convicted of having had carnal knowledge of Stella June Koch, a girl under the age of eighteen years, and from sentence pursuant to the conviction the defendant has appealed.

Stella June is the daughter of one Walter C. Brewer. The latter's wife, mother of Stella June, divorced the latter, and she subsequently, about 1937, married the defendant. In 1943, Stella June, for convenience called the prosecutrix, and her twin sister and younger brother were adopted by the defendant.

The prosecutrix testified that the crime charged was committed in the Hockett apartments in Pinedale, Wyoming, about June 28, 1944, and that she had had sexual intercourse with the defendant previously without stating any dates. The information herein was filed on May 27, 1946. But it appears that defendant was arrested on another information apparently charging the same crime about September 11, 1945, shortly after the defendant had left his wife. Defendant's wife thereafter got a divorce from defendant.

1. It is assigned as error that the court permitted Stella June Koch to testify, over objection, to alleged previous acts of sexual intercourse. We do not think that that question is open in this state. Strand vs. State, 36 Wyo. 78, 252 P. 1030; State vs. Quirk, 38 Wyo. 462, 268 P. 189. There is an annotation upon the subject in 167 A. L. R. 574, where it is stated: "In most jurisdictions it is recognized that in prosecutions for statutory rape, or rape of a female under the age of consent or otherwise unable to consent, evidence is admissible which tends to show prior offenses of the same kind committed by the defendant with the prosecuting witness, such evidence being admitted in corroboration of the offense charged or to prove identity, and not to prove a separate offense." And in 44 Am. Jur. 950, it is said: "The doctrine must now be considered as fairly well settled by the weight of authority that in prosecutions for rape upon one under the age of consent, acts of sexual intercourse between the parties prior to the act charged in the indictment may be given in evidence as tending to sustain the principal charge, by showing the relation and intimacy of the parties, and their disposition and antecedent conduct toward each other, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction."

2. On November 16, 1946, two physicians examined the prosecutrix and they were permitted to testify that the sexual organs of the prosecutrix had been penetrated and her hymen was absent. The examination was made some 27 or 28 months after the alleged crime in this case and error is assigned that the evidence was too remote and should not have been permitted. The court permitted the testimony on the theory that remoteness went to the weight and not to the competency of the testimony. It has been held that such testimony does not show that the defendant is guilty of the crime with which he is charged, and should not be admitted if the examination is made 18 months after the date of the crime charged. People vs. Butler, 55 A.D. 361, 66 N.Y.S. 851. And if an instruction had been asked, limiting the purpose for which the testimony was admitted it should probably have been given. No such instruction was asked. It is said in 22 C. J. S. 977, Sec. 638:

"While the trial court may, and in some instances should, reject evidence which, although relevant or deemed to be relevant appears too remote to be material, yet of course there are many instances in which particular evidence has been held not inadmissible on this ground; and ordinarily remoteness affects the weight, rather than the admissibility, of evidence. The question of excluding evidence because of remoteness rests largely in the sound discretion of the trial judge. "Remoteness is a matter of degree. Its essence is such a want of open and visible connection between the evidentiary and...