State v. Larsen

• Decision Date: 07 May 1927
• Docket Number: 4943
• Citation: 256 P. 107,44 Idaho 270
• Parties: STATE, Respondent, v. LOUIS C. LARSEN, Appellant
• Court: Idaho Supreme Court

256 P. 107

44 Idaho 270

STATE, Respondent, v. LOUIS C. LARSEN, Appellant

No. 4943

Supreme Court of Idaho

May 7, 1927

CRIMINAL LAW-RAPE-CONVICTION ON UNCORROBORATED TESTIMONY-ERRONEOUS INSTRUCTION.

Instruction in prosecution for rape, that conviction could be had on uncorroborated evidence of prosecutrix, unless evidence was of contradictory nature or chastity or reputation for truthfulness impeached, held erroneous.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robt. M. Terrell, Judge.

Conviction of statutory rape. Reversed and remanded.

Judgment reversed, and a new trial granted.

W. B Yates, for Appellant.

A judgment of conviction of rape cannot be sustained in any event unless the circumstances surrounding the commission of the offense are clearly corroborative of her statements. (State v. Baker, 6 Idaho 496, 56 P. 81; State v Anderson, 6 Idaho 706, 59 P. 180; State v Trego, 25 Idaho 625, 138 P. 1124; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Andrus, 29 Idaho 11, 156 P. 421; Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Allen v. State, 10 Okla. Cr. 55, 134 P. 91; State v. Hobson (Mo.), 177 S.W. 374; Ex parte Ledington, 18 Okla. Cr. 53, 192 P. 595; State v. Short, 39 Idaho 446, 228 P. 274; State v. Bowker, 40 Idaho 74, 231 P. 706.)

Frank L. Stephan, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

In a prosecution for statutory rape, where it is shown that the accused kept company with the prosecutrix, that they were frequently together under circumstances that offered him an opportunity to violate her person; that she became pregnant during such time and subsequently gave birth to a child whose paternity she charges to the accused, such facts and circumstances are sufficiently corroborative of her testimony that he committed the offense charged to sustain a verdict of guilty. (State v. Mason, 41 Idaho 506, 239 P. 733.)

GIVENS, J. Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

Appellant was convicted of the crime of statutory rape. Two errors are assigned, the insufficiency of the evidence and the giving of the following instruction:

"You are advised, gentlemen of the jury, that in a case of this character, to-wit: where rape is charged, a conviction may be had upon the uncorroborated evidence of the prosecutrix, but if the evidence of the prosecutrix is of a contradictory nature, or her chastity or reputation for truthfulness is impeached, her testimony must be clearly corroborated by surrounding circumstances before a conviction can be had."

The giving of such an instruction was held to be prejudicial error in State v. Hines, 43 Idaho 713, 254 P....