State v. Kotthoff, 7311
| Decision Date | 13 February 1947 |
| Docket Number | 7311 |
| Parties | STATE v. KOTTHOFF |
| Court | Idaho Supreme Court |
Appeal from District Court, Eleventh Judicial District, Twin Falls County; James W. Porter, Judge.
Judgment reversed and cause remanded with authority to grant a new trial.
W. L Dunn and Frank L. Stephan, both of Twin Falls, for appellant.
The testimony of a prosecuting witness in a case charging assault with intent to commit rape must be corroborated and the corroboration must be by evidence that does not emanate from the mouth of the prosecutrix and rest wholly upon her credibility. Rather, it must be wholly independent of anything prosecutrix says and such as to add to and to strengthen her testimony and of such character as tends to connect the accused with the commission of the offense especially where her testimony is denied by the accused and nothing in the accused's testimony tends to corroboration. State v. Anderson, 6 Idaho 706, 59 P 180; State v. Baker, 6 Idaho 496, 56 P. 81; State v. Short, 39 Idaho 446, 228 P. 274; State v. Hines, 43 Idaho 713, 254 P. 217.
A confession must be free and voluntary to be admissible as evidence against the accused, and where the purported confession is made to the officer having the accused in custody any words used by the officer to induce the confession, that amount to holding out any hope to the accused however slight, renders the confession inadmissible; likewise a confession so obtained by the officer by questioning, as was done in the case at bar, is generally held to render the confession involuntary and inadmissible against the accused. 16 C.J. Sec. 1468, p. 717; Sec. 1474, pp. 720, 721, and Sec. 1476, p. 721; State v. Mason, 4 Idaho 543, 43 P. 63.
Robert Ailshie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.
In a case of rape or assault with intent to commit, evidence which tends to strengthen the testimony of the prosecutrix is corroborative. State v. Vail, 47 Idaho 354, 275 P. 578, and authorities there cited.
By corroboration is meant evidence which corroborates the testimony of the prosecutrix, not proof of the physical acts involved. No other sort of corroboration is required. State v. Flitton, 52 Idaho 374, 15 P.2d 397; State ex rel. Dickerson v. Tokstad, 139 Or. 63, 8 P.2d 86, 88; Bowersox v. Bowersox, 157 Md. 476, 146 A. 266, 267, 65 A.L.R. 165.
It is not necessary that there be any direct evidence of the facts constituting the crime, other than that of the prosecutrix. State v. Pettit, 33 Idaho 326, 335, 193 P. 1015.
Extra-judicial admissions, or confession, of or tending to prove guilt are properly admitted to prove both the corpus delicti and defendant's commission thereof, unless it be proven that they were obtained by threats or promises, or by duress and coercion. 22 C.J.S. Criminal Law, § 817, pp. 1431-1437; Territory v. McKern, 3 Idaho (Hasb.) 15, 26 P. 123; State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Davis, 6 Idaho 159, 53 P. 678; State v. Nolan, 31 Idaho 71, 78, 79, 169 P. 295; State v. Jeanoes, 36 Idaho 810, 812, 813, 213 P. 1017; State v. Andreason, 44 Idaho 396, 401, 257 P. 370.
This is an appeal from a judgment of conviction for assault with intent to commit rape.
Appellant (Kotthoff), forty years of age, a discharged veteran of World War II, was employed by the Orange Transportation Company, as a truckdriver; he made three round trips from Twin Falls to Salt Lake City each week. According to the vice-president of the company, appellant bore a good reputation. He was "considered a good man". Another, when asked as to appellant's "being a law abiding citizen", said: "I have always found him so. * * * every one speaks highly of him." Mrs. Bright, owner of the apartment house where appellant lived, testified to his "good" reputation.
October 19, 1945, appellant (Kotthoff) and wife moved into an apartment in Twin Falls. November 19, 1945, Lorene Hann, prosecutrix, with her husband, moved into the same apartment house; they were married September 25, '45. Originally the house was a single residence property, converted by the owner, Mrs. Bright, into a two-apartment house. The two couples (Kotthoffs and Hanns) share a refrigerator, which was in the kitchen of the Hann apartment, a lavatory and bathroom connecting the two apartments. The two doors (inside of the bathroom), one leading from the Hann apartment and the other from the Kotthoff side, were equipped with locks. There were, however, no locks on the doors inside of the Hann apartment. After the latter couple moved into the house, appellant and wife had locks put on the doors inside of their apartment.
It was customary for appellant's wife to to go into the Hann kitchen to make use of the refrigerator, also to see about hot water which was heated by an incinerator there. When asked as to whether the latter resented that, appellant's wife replied: "She seemed to." In order to heat the bathroom for either couple, it was necessary to leave the door to each separate apartment open. A great deal of friction and some differences between the parties arose over the Hanns partying and making so much noise that appellant and his wife could not sleep. Mrs. Kotthoff testified to several "altercations" with the Hanns and had "asked them to be more quiet because we couldn't sleep". Complaint was also made because the bathroom door leading to the Kotthoff apartment was locked "half of the time * * * they [Hanns] consistently forgot to unlock the door so we could get in". The relations between the two couples were not friendly; they did not neighbor.
One "Saturday" night, soon after the Hanns moved into the apartment, they gave a "housewarming" and neighbors complained on account of the noise, "a lot of car doors banging and music" until "two-thirty" in the morning. When asked whether there had been "some wild parties there", appellant's wife replied: "There had been one party" and "drinking before that." As to how the word reached Mrs. Bright, the owner of the house, Mrs. Kotthoff said she believed Mrs. Bright's "sister wrote to her." Mrs. Bright stated that the "neighbors" had told her.
November 30, 1945, less than two weeks after the Hanns moved into their apartment, a telegram (dayletter) was received by the Kotthoffs and three days later a letter followed, both sent them by Olen N. Sutton, Memphis, Tenn., apparently the agent for the owner, Mrs. Bright. On the day the letter was received, appellant delivered the telegram and letter to Mrs. Hann; he handed them to her in the kitchen of her apartment. According to testimony of the prosecutrix and appellant, this was the only time he had been in the Hann apartment, except for the time the two couple were introduced by Mrs. Bright. Prosecutrix accepted the telegram and letter but did not read or discuss them with appellant. They read as follows:
I just sent you a 50 word day wire so here is the letter. I just had a letter from Letha, and she is quite worried about the other part of the house, as you folks know and Letha and I both thought, that Mr. and Mrs. Hann were such inocent kids, I want you & Paul to show them this letter. Letha & I both want you & Paul to stay, sort of look after the house, we will not have any late wild parties at no time in that house by them or no one else. You & Paul were there a month & you both were so quiet that one would hardly know you were there. I expect to have such conduct carried out. As to them having company that is fine, but not wild parties.
You know Ann I've known Letha all my life, and it is my duty to look after her intrests. She wrote me about it. Ann you & Paul take the big Radio and put it in your apt. we forgot it before we left, just cover it up with something please.
Now if Mr. & Mrs. Hann want to stay there they must obey you, if now we will ask you to rent the apt. to some good couple that you & Paul feel like you would like to have for your neighbor. Now we are not coming back. I'm glad we heard about this and orders must be obeyed. 10 P. M. is late no ink (balance of letter written in pencil] enough for company to visit 11 p. m. at the latest and above all respect has to be shown to all.
Please write and tell me as Letha worries about things.
Best wishes & kindest regards to you & Paul
Olen N. Sutton Gen. Del.
Memphis, Tenn."
In telling of the alleged attack, prosecutrix testified appellant had tripped her or knocked her down on the bathroom floor and attempted to rape her, December 14, 1945, about the time she was expecting her husband home for lunch (1 to 1:30 p.m.). Appellant did not accomplish his purpose but prosecutrix testified to bruises on her elbows, knees and ankles. Her husband corroborated her testimony, and also Dr Murphy, to whom she went about 4:30 the same afternoon. After the alleged attack, prosecutrix returned "to the kitchen to put the water on for the coffee." After her return to the apartment, she testified she "heard something that sounded like a door opening, and it frightened" her; she ran from the kitchen out the front door to her husband's place of business, but her...
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