State v. Lancaster

• Citation: 78 P. 1081,10 Idaho 410
• Parties: STATE v. LANCASTER
• Decision Date: 17 December 1904
• Court: United States State Supreme Court of Idaho

78 P. 1081

10 Idaho 410

STATE v. LANCASTER

Supreme Court of Idaho

December 17, 1904

PROSECUTION FOR RAPE-CHARGE OF SINGLE OFFENSE-PROOF OF OTHER RAPES ON PROSECUTRIX-ADMISSIBLE WHEN CORROBORATIVE OF PROSECUTRIX-ELECTION BY STATE.

1. The general rule in criminal cases is that where one specific offense is charged, the commission of other offenses cannot be proven for the purpose of showing that the defendant would have been more likely to have committed the offense for which he was on trial, nor as corroborating the testimony relating thereto. But there are some exceptions to this general rule and where the offense consists of rape upon a female under the age of consent, evidence of previous acts occurring prior to the offense alleged is admissible as having a tendency to render it more probable that the crime charged was committed though evidence of such crimes would be inadmissible as independent testimony.

2. The proof of other rapes on the prosecutrix than the one charged in the information is not admissible for the purpose of proving this distinct offense, but to show the relation and the familiarity of the parties and as corroborative of the prosecutrix's testimony concerning the particular act relied upon for a conviction.

3. In this class of cases where several crimes of the same kind may be proved, the state must elect on what particular offense it will stand, and the jury must be informed for what offense a conviction is demanded.

(Syllabus by the court.)

APPEAL from District Court of Idaho County. Honorable Edgar C Steele, Judge.

Prosecution for statutory rape. Defendant convicted. Judgment affirmed.

Affirmed.

Clay McNamee and M. R. Hattabaugh, for Appellant.

The information in this case charges the defendant with but one act of sexual intercourse with the prosecutrix, alleged to have taken place on or about the tenth day of June, 1902. The evidence introduced by the state over the strenuous objection of the defendant's counsel shows, or tends to show, the perpetration of two other separate and distinct acts of rape committed by the defendant upon the prosecutrix at periods of time antedating the date alleged in the information for more than one year. The defendant came into court for trial, as he and his counsel supposed, to meet but the single charge named in the information, and was compelled, under the ruling of the court, to meet three separate and distinct charges, in which he was taken by surprise and could not successfully prepare his defense. Who can say whether or not the defendant was found guilty upon the charge as set out in the information or upon one or both of the other acts allowed in evidence before the jury? On this particular phase of this case, we submit the following well-considered authorities: 23 Am. & Eng. Ency. of Law, 2d ed., p. 881; People v. Stewart, 85 Cal. 174, 24 P. 722; People v. Bowen, 49 Cal. 654; Janzen v. People, 159 Ill. 440, 12 N.E. 862; State v. Bonsor, 49 Kan. 758, 31 P. 736; State v. Masteller, 45 Minn. 128, 47 N.W. 541; Owens v. State, 39 Tex. Cr. Rep. 391, 46 S.W. 240; Parkinson v. People, 135 Ill. 401, 25 N.E. 764, 10 L. R. A. 91; Snurr v. State, 2 Ohio Cir. Dec. 614. In exceptional cases, the doctrine laid down in these decisions is relaxed and evidence of other similar acts become admissible, but only for the purpose of showing intent, but that exception has been held in cases of this kind in California not to apply. Had the information contained three different counts, even then the state would have been properly required to elect upon which charge it would stand and rely for a conviction, and where evidence had been introduced showing more than one act, the authorities hold that the state must then elect on which act it will rely for conviction. (People v. Williams, 133 Cal. 165, 65 P. 323; People v. Castro, 133 Cal. 11, 65 P. 13; State v. Hilberg, 22 Utah 27, 61 P. 216; State v. Stevens, 56 Kan. 720, 44 P. 992.)

Attorney General John A. Bagley, for the State.

The only point argued by counsel for appellant was that the court erred in admitting evidence of former acts of sexual intercourse between the parties. This is always admissible in this class of cases. (Commonwealth v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; People v. O'Sullivan, 104 N.Y. 481, 58 Am. Rep. 530, 10 N.E. 880; State v. Marvin, 35 N.H. 22; State v. Wallace, 9 N.H. 515; State v. Knapp, 45 N.H. 156; Strang v. People, 24 Mich. 1, cases cited in note on page 2; Sharp v. State, 15 Tex. App. 171; State v. Way, 5 Neb. 287; Thayer v. Thayer, 101 Mass. 112, 100 Am. Dec. 110; State v. Raymond, 53 N.J.L. 260, 21 A. 328; Bottomley v. United States, 1 Story, 135, F. Cas. No. 1688.)

SULLIVAN, C. J. Stockslager and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

The appellant was convicted of the crime of statutory rape, and sentenced to a term of six years in state's prison. The first error assigned is that the court erred in failing to require the clerk to state the plea of the defendant to the jury. While the record and the notes of the stenographic reporter do not show that the defendant's plea was stated to the jury, we have before us the affidavit of the stenographic reporter, in which he says: "That as soon as the jury were sworn and impaneled in the said cause, the clerk of said court, under the direction of the court, read to the jury the information in the said cause, and immediately thereafter stated to the jury that the defendant pleaded not guilty." Also in the first instruction given to the jury by the court, the court there states that the "defendant pleads not guilty" to the information. For that reason the case of State v. Chambers, 9 Idaho 673, 75 P. 274, is not in point, as in that case there was no showing whatever that the plea was not stated to the jury, and it was admitted that the plea was not stated to the jury. If the plea was in fact stated to the jury, and the stenographer's notes do not show that fact, it may be shown by the affidavit. The record may be made to speak the truth.

Counsel for appellant contend that the court erred in the admission and rejection of certain testimony, specifying the same, and contended that the information charges the defendant with having committed the rape, of which he was found guilty, to have taken place on or about the tenth day of June, 1902, and that the evidence introduced by the state over the strenuous objection of defendant's counsel, shows, or tends to show, the perpetration of two other separate and distinct acts of rape committed by the defendant on the prosecutrix at periods of time antedating the date alleged in the information, one for more than a year, and the other nine months, and that the admission of the proof thereof was error.

The record shows that after the complaining witness had testified that the rape was committed on the ninth day of June, 1902, she was permitted to testify, under objection, to two other acts of rape upon her, one occurring in May, or June, 1901, and the other in September, 1901.

The general rule is that a crime distinct from that laid in the information cannot be given against the prisoner, but there are exceptions to that rule. The general rule is based upon the principle that the commission of an independent offense is not in itself proof of the commission of another crime--the one for which the defendant is prosecuted. Cases, however, occur where the crime charged in the information is so connected with the crime, proof of which is sought to be introduced, that the existence of the one tends to establish the existence of the other, and that is the reason on which the exception to the general rule is based. (23 Am. & Eng. Ency. of Law, 2d ed., p. 248.) But the courts are not agreed on the terms or the extent of the exceptions to the general rule, and it is stated at page 249 of the authority above cited, as follows: "Many of the exceptions, however, are old and well fixed, and courts take their stand on these established exceptions, and will not allow the introduction of evidence of independent offenses unless the particular instance can be shown to fall under one of these recognized cases." And the author there states that a good deal appears to rest on the discretion of the judge as to whether such a connection between the crimes is shown as to warrant its introduction.

While there is a...