State v. Linebarger, 7613

• Citation: 71 Idaho 255,232 P.2d 669
• Decision Date: 23 April 1951
• Docket Number: No. 7613,7613
• Parties: STATE v. LINEBARGER.
• Court: Idaho Supreme Court

Page 669

232 P.2d 669

71 Idaho 255

STATE v. LINEBARGER.

No. 7613.

Supreme Court of Idaho.

April 23, 1951.

Rehearing Denied June 25, 1951.

Cleve Groome, Frank E. Meek, Caldwell, for appellant.

Robert E. Smylie, Atty. Gen., John R. Smead, Asst. Atty. Gen., W. W. Wander, Pros. Atty., Caldwell, for respondent.

TAYLOR, Justice.

The defendant was convicted of the crime of rape charged to have been committed against the person of a female who at the time was past the age of eighteen years. The information charges that the act was accomplished 'forcibly and by threats of great and immediate bodily harm accompanied by the apparent power of execution and against the consent of' the prosecutrix, and that she 'did then and there resist the accomplishment of said act of sexual intercourse but her resistance was then and there overcome by force and violence used upon and against' the prosecutrix.

The statute defining rape so far as pertinent here is as follows:

'Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances:

'* * *

'* * *

'3. Where she resists, but her resistance is overcome by force or violence.

'4. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution; * * *.' Sec. 18-6101, I.C.

The defendant demurred to the information, and moved the court to require the state to elect, upon the ground that the information charged two offenses, one under subsection 3, and the other under subsection 4, supra. The appellant assigns as error the overruling of the demurrer and the denial of the motion to elect. There is no merit in these assignments. The information charges but one offense. Sec. 19-1413, I.C. State v. McDermott, 52 Idaho 602, 17 P.2d 343; State v. Carlson, 53 Idaho 139, 22 P.2d 143; State v. Salhus, 68 Idaho 75, 189 P.2d 372; State v. Baldwin, 69 Idaho 459, 208 P.2d 161; State v. Ayres, 70 Idaho 18, 211 P.2d 142.

Appellant complains of the overruling of his objection to redirect examination of the prosecutrix on the ground that the subject matter of such examination was not mentioned in the cross-examination. This redirect examination elicited testimony of the prosecutrix that, after the group had returned to Caldwell, she told her girl companion what had happened, and that upon arrival at her home in Nampa she went in and woke her mother and told her what had happened, and as to her own physical condition and the condition of her clothes, and that the next morning the clothes were delivered to the sheriff. These facts were not gone into in her cross-examination. On cross-examination she was asked, 'Did you say anything to these other boys and girls when you got back to the car?' She answered, 'No, I didn't say anything to them then, I was afraid to.' Some of the redirect examination was directed to the question of when and to whom she made complaint, which was thus referred to on the cross-examination. The rules governing the examination of witnesses are intended to protect the rights of litigants, and to secure orderly dispatch of the business of the courts, and should be observed. However, in their enforcement the court must not lose sight of the paramount objective of all trials, that is, to arrive at the truth and do justice. To this end the court must exercise a broad discretion in the application of such rules. We find no abuse of that discretion here. Secs. 9-1202, 9-1208, I.C. State v. Fox, 52 Idaho 474, 16 P.2d 663; 58 Am.Jur., Witnesses, Sec. 562; 70 C.J., Witnesses, sec. 862, p. 712.

Error is assigned in the admission in evidence of state's exhibits 'A' and 'B', photographs of the prosecutrix, taken the day following the attack, introduced to show swollen and discolored eye, in corroboration of her testimony that defendant struck her. Exhibit 'F', being a photograph of the scene of the attack, was also objected to. These photographs were supported by testimony that they were correct representations of the objects portrayed, except that the sheriff testified that the discoloration about the prosecutrix' eye did not show up in the photograph to the extent that it appeared to one observing her at the time the photograph was taken. There was no error in the admission of these exhibits. Stokes v. Long, 52 Mont. 470, 159 P. 28; State v. Roberts, 28 Nev. 350, 82 P. 100; State v. Evans, 115 Kan. 538, 224 P. 492; State v. Jones, 48 Mont. 505, 139 P. 441; State v. Reding, 52 Idaho 260, 13 P.2d 253; 23 C.J.S., Criminal Law, § 852; Mow v. People, 31 Colo. 351, 72 P. 1069.

Exhibits 'C', 'D' and 'E' are photographs of the appellant taken at the sheriff's office two days after the attack, and were introduced to show alleged scratches on his face, in corroboration of the prosecutrix' testimony. The record does not show that the sheriff sought the prisoner's permission to take these pictures, nor that he made any objection to being photographed. The sheriff testified that they were true likenesses of the defendant as he saw him on the day following the attack. Appellant contends that this evidence violates his constitutional immunity from self-incrimination by requiring him to give evidence against himself. This contention is without merit. Art. 1, sec. 13, Idaho Constitution. State v. Casey, 108 Or. 386, 213 P. 771, 217 P. 632; State v. Oschoa, 49 Nev. 194, 242 P. 582; Shaffer v. U. S., 24 App.D.C. 417; State v. McDermott, 52 Idaho 602, 17 P.2d 343; Rutherford v. State, 135 Tex.Cr.R. 530, 121 S.W.2d 342; People v. Ferns, 27 Cal.App. 285, 149 P. 802; State v. Clark, 156 Wash. 543, 287 P. 18; State v. Sedam, 62 Idaho 26, 107 P.2d 1065.

While the sheriff was testifying as a witness for the state, he was asked if he had had occasion to talk to the defendant. Then, in response to a question, injected by the defendant in support of an objection, as to whether the defendant at the time knew the witness was the sheriff, he answered, 'Yes, of course, he knew I was sheriff because of a previous investigation.' On continuation of the direct examination, the prosecutor inquired, 'What kind of an investigation was that?' to which the sheriff answered, 'Statutory rape.' The defense moved to strike the answer on the ground that attempt was being made to prove a 'former alleged crime.' The motion was denied. On cross-examination of the defendant, the prosecuting attorney was allowed to inquire as to his previous marriage and divorce. Then the prosecutor asked if the sheriff had inquired about his relations with the girl whom he had married. Upon objection being made by the defense, the prosecuting attorney having advised the court (in the absence of the jury) that he sought to inquire into an alleged previous offense, the court sustained the objection. While there is here an inference that the defendant had been investigated in connection with a previous offense, we find no such prejudicial error as would warrant a reversal.

During the course of the examination of witnesses, the trial judge made certain comments which are assigned as error. The first occurred during the direct examination of the prosecutrix. The defendant moved to strike an answer on the ground that it was not responsive. The court ruled, 'It may be stricken, if you want to be technical.' The motion to strike was in a sense technical. The first part of the answer was direct and responsive and should not have been stricken. Defendant's counsel was in error in not limiting his motion to that part of the answer which was not responsive. And, since the portion of the answer which was not responsive was merely preliminary, the motion should have been denied. The next remark was made near the close of the cross-examination of the prosecutrix. The state's attorney made an objection on the ground of repetition. The court ruled, 'She may answer. The court is giving you a lot of leeway on this cross-examination.' The state had made only one previous objection during the course of cross-examination, and there had been some repetition. Great latitude should be allowed in the cross-examination of witnesses and we do not think the cross-examination of the prosecutrix in this case was overextended. The third remark was made during the cross-examination of the state's witness, Dr. Distler. Upon objection by the state on the ground of repetition, the court ruled, 'Objection sustained. You are arguing with the witness.' The question referred to was a summation of the three previous questions which had already been answered. Hence, there was some justification for the remark. No objection was made at the trial as to either of these remarks. State v. Frank, 51 Idaho 21, 1 P.2d 181; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Behler, 65 Idaho 464, 146 P.2d 338. However, appellant urges the impracticability of the rule requiring that objection be made to such remarks at the trial, involving as it does the risk of further prejudicing the client's cause by incurring or increasing the ire of the judge by making such objections. Counsel further urges that it is difficult to make a showing, before the appellate court, which will reflect the exact manner, facial expression, and intonation, of the trial judge at the time of making such remarks, which characterizes them as expressions of the feelings or prejudices of the judge towards the complaining litigant. These contentions are fraught with considerable merit. It is because of the susceptibility of the average juror to the opinions and prejudices of the trial judge, that the rule was established that the judge 'should make no remarks or comments that would tend to prejudice either of the parties litigant on the trial.' State v. Miller, 60 Idaho 79, 88 P.2d 526, 527. We cannot too strongly condemn, in any trial judge, conduct or remarks during the course of a trial which are unprovoked and unnecessary to the orderly conduct of the trial, and which...