State v. Larsen

• Citation: 246 P. 313,42 Idaho 517
• Parties: STATE, Respondent, v. LOUIS C. LARSEN, Appellant
• Decision Date: 26 May 1926
• Court: United States State Supreme Court of Idaho

246 P. 313

42 Idaho 517

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

Supreme Court of Idaho

May 26, 1926

CRIMINAL LAW - RAPE - EVIDENCE OF PRIOR OFFENSE - PREJUDICIAL ERROR IN ADMISSION OF EVIDENCE-WITNESSES-LEADING QUESTIONS-COURT'S CONTROL OVER EXAMINATION.

1. Proof that defendant attempted, three years previously, to commit sexual crime on another female, does not show design or intent to perpetrate a rape on prosecutrix.

2. In criminal prosecutions involving sexual crimes, it is not permissible to show evil disposition inclining defendant toward that particular crime, by acts totally disassociated with, and far remote in time from, act of which he is accused, and against different female.

3. Submission of testimony in rape prosecution, tending to show that defendant, three years previously, made assault on different female with intent to commit rape, was prejudicial.

4. Matter of control of trial court over form of questions propounded is largely discretionary, and, in absence of clear abuse of discretion and apparent prejudice to rights of defendant, its ruling will not be disturbed on appeal.

5. Although ordinarily leading questions are objectionable exception will be made where young and unsophisticated girl testifies as to details of crime of rape.

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

Louis C. Larsen was convicted of statutory rape, and he appeals. Reversed and remanded.

Reversed and remanded.

W. B Yates, for Appellant.

Leading questions should only be asked on direct examination in the following cases: The unwilling witness, the timid witness the hostile witness and the forgetful witness. (Underhill's Crim. Evidence, 3d ed., sec. 343, and cases there cited.)

In cases of this character the weight of authority seems to be that evidence of prior acts of the prosecutrix and defendant are inadmissible, and a fortiori prior acts of the defendant and a third party; which acts are shown to have occurred some four years prior to the offense of which the defendant stands charged should be excluded. (State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Start, 65 Ore. 178, 132 P. 512, 46 L. R. A., N. S. 266; People v. Leotile 31 Cal.App. 166, 159 P. 1057; People v. Wyett, 49 Cal.App. 289, 193 P. 153; Dunscombe v. State (Okla. Cr.), 197 P. 1073; People v. Barnes, 48 Cal. 551; People v. McNutt, 64 Cal. 116, 28 P. 64; 1 Wigmore, Evidence, sec. 357; vol. 4, secs. 2062-2064; 4 Elliott, Evidence, sec. 3103; 23 Am. & Eng. Ency. of Law, 2d ed., 247, 871; Wharton, Crim. Evidence, 9th ed., sec. 30; McKelvey, Evidence, 144, 145; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; Butt v. State, 81 Ark. 173, 118 Am. St. 42, 98 S.W. 723; People v. Jennings, 252 Ill. 534, 96 N.E. 1077, 43 L. R. A., N. S., 1206; People v. Gibson, 255 Ill. 302, 99 N.E. 599, 48 L. R. A., N. S., 236; Strong v. State, 86 Ind. 208, 44 Am. Rep. 292, and note; State v. Holland, 120 La. 429, 14 Ann. Cas. 692, 45 So. 380; Commonwealth v. Campbell, 7 Allen (Mass.), 541, 83 Am. Dec. 705; State v. Hyde, 234 Mo. 200, Ann. Cas. 1912D, 191, 136 S.W. 316; State v. Lapage, 57 N.H. 245, 24 Am. Rep. 69; Bullock v. State, 65 N.J.L. 557, 86 Am. St. 668, 47 A. 62; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L. R. A. 193, and note; State v. Murphy, 17 N.D. 48, 16 Ann. Cas. 1133, 115 N.W. 84, 17 L. R. A., N. S., 609; State v. Dickerson, 77 Ohio 34, 122 Am. St. 479, 11 Ann. Cas. 1181, 82 N.E. 969, 13 L. R. A., N. S., 341, and cases there cited; Skidmore v. State, 57 Tex. Cr. 497, 123 S.W. 1129, 26 L. R. A., N. S., 466; Clark v. State, 59 Tex. Cr. 246, 128 S.W. 131, 29 L. R. A., N. S., 323; State v. Kelley, 65 Vt. 531, 36 Am. St. 884, 27 A. 203.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

The allowance of leading questions rests in the discretion of the trial court and a case will not be reversed on this ground unless there is a manifest abuse of discretion. (State v. Nolan, 31 Idaho 71, 169 P. 295; Pedersen v. Moore, 32 Idaho 420, 184 P. 475.)

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. (State v. Lancaster, 10 Idaho 410, 78 P. 1081.)

ADAIR, Commissioner. Wm. E. Lee, Budge, Givens and Taylor, JJ., concur.

OPINION

ADAIR, Commissioner.

Defendant was convicted of the crime of statutory rape. The assignments of error may be briefly summarized and grouped under three heads, namely: (1) Error in permitting the state to introduce evidence of an alleged attack by defendant upon another girl, some years prior to the alleged criminal act for which he was on trial; (2) error in permitting the prosecuting attorney to ask leading questions of the prosecutrix; (3) insufficiency of the evidence, in that the testimony of the prosecutrix was uncorroborated, although she was impeached.

In reference to the first assignment of error the record shows that the state submitted testimony, over the objection of defendant, tending to prove that defendant made an assault with an intent to commit rape upon one Rachael Black, another girl of tender years, about three years previous to the time it is alleged the crime for which he was being tried had been committed. This incident was not connected, in the slightest degree, with the crime of which he was accused in the information, but was an entirely distinct and separate offense, very remote in time, and absolutely unrelated in every respect and from every viewpoint.

Proof that he attempted to commit another sexual crime three years previously, upon another female, does not show any design or intent to perpetrate a rape three years later upon the present complainant; neither does it prove or tend to prove that he had since that time committed the particular crime upon the prosecutrix.

In criminal prosecutions, involving sexual crimes, it is not competent or permissible to show an evil disposition inclining defendant toward that particular crime, by acts totally disassociated with, and far remote in time, from the act of which he is accused, and against an entirely different female. It is utterly repugnant to fairness and...