State v. Mackey
| Citation | 153 N.W. 982,31 N.D. 200 |
| Decision Date | 23 June 1915 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Barnes County, Coffey, J.
Reversed.
A. P Paulson, for appellant.
It is the universal holding of the authorities that each act of carnal intercourse testified to by the prosecutrix constitutes a separate, distinct, and substantive offense. This is elementary. State v. Brown, 58 Iowa 298, 12 N.W. 318; State v. King, 117 Iowa 484, 91 N.W. 768; People v. Clark, 33 Mich. 112, 1 Am. Crim. Rep. 660; State v. Bonsor, 49 Kan. 758, 31 P. 736; State v. Hilberg, 22 Utah 27, 61 P. 215; State v Masteller, 45 Minn. 128, 47 N.W. 541; State v Acheson, 91 Me. 240, 39 A. 570; State v Parish, 104 N.C. 679, 10 S.E. 457; People v Castro, 133 Cal. 11, 65 P. 13; Stone v. State, 45 Tex. Crim. Rep. 91, 73 S.W. 956; People v. Williams, 133 Cal. 165, 65 P. 323; People v. Flaherty, 162 N.Y. 532, 57 N.E. 73.
Evidence of prior acts of intercourse is only admissible for the purpose of tending to show the commission of the act upon which a conviction is sought. State v. Scott, 172 Mo. 536, 72 S.W. 897; State v. Patrick, 107 Mo. 147, 17 S.W. 666; note to People v. Molineux, 62 L.R.A. 329; Grabowski v. State, 126 Wis. 447, 105 N.W. 805; Blair v. State, 72 Neb. 501, 101 N.W. 17; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N.W. 862; State v. Trusty, 122 Iowa 82, 97 N.W. 989; State v. Palmberg, 199 Mo. 233, 116 Am. St. Rep. 477, 97 S.W. 566; Sykes v. State, 112 Tenn. 572, 105 Am. St. Rep. 972, 82 S.W. 185; Batchelor v. State, 41 Tex. Crim. Rep. 501, 96 Am. St. Rep. 791, 55 S.W. 491; State v. Schueller, 120 Minn. 26, 138 N.W. 937.
Evidence of such acts occurring subsequent to the one on which the prosecution is based is not competent or admissible. Lunn v. State, 44 Tex. 85; Fisher v. State, 33 Tex. 792.
Where separate acts of intercourse are shown or sworn to by the prosecutrix, defendant should not be called upon to defend himself against each of such acts, extending over a period of several months; the information charges but one act, and the state should have been compelled to elect, and to stand or fall, upon the information. People v. Castro, 133 Cal. 11, 65 P. 13; State v. Hilberg, 22 Utah 27, 61 P. 215; People v. Williams, 133 Cal. 165, 65 P. 323.
No request of the defendant that the state elect as to which act it would seek conviction on, until after the state had rested. The prosecutrix designated the time of the first act of sexual intercourse, and then testified as to other acts. It seems settled that the law would imply an election of the first act as the one upon which a conviction would be sought, without the necessity for any request. People v. Jenness, 5 Mich. 305; State v. Acheson, 91 Me. 240, 39 A. 570; State v. Hilberg, 22 Utah 27, 61 P. 215; People v. Williams, 133 Cal. 165, 65 P. 323; People v. Clark, 33 Mich. 112, 1 Am. Crim. Rep. 660; State v. Palmberg, 199 Mo. 233, 116 Am. St. Rep. 477, 97 S.W. 566; People v. Flaherty, 162 N.Y. 532, 57 N.E. 73.
The only purposes of cross-examination of a defendant charged with crime are to show motive, and to test his credibility. No evidence is competent which is not of a character to throw light on the issue. It is never competent to prove, against the defendant on trial for crime, the commission of another crime, simply to show that he is of a criminal disposition. Proof of one crime has no tendency to prove the commission of another crime, unless the two are so connected or related that proof of one has a direct bearing upon the other,--in other words, that such proof tends to show or furnish motive. State v. Hazlet, 16 N.D. 444, 113 N.W. 374; State v. LaMont, 23 S.D. 174, 120 N.W. 1104; Com. v. Jackson, 132 Mass. 16; State v. Carson, 66 Me. 116, 2 Am. Crim. Rep. 58; People v. Crapo, 76 N.Y. 288, 32 Am. Rep. 302; People v. Brown, 72 N.Y. 571, 28 Am. Rep. 183; Gifford v. People, 87 Ill. 210; Hayward v. People, 96 Ill. 492; Rice, Crim. Ev. 215; State v. Apley, 25 N.D. 298, 48 L.R.A.(N.S.) 269, 141 N.W. 740; Richardson v. Gage, 28 S.D. 390, 133 N.W. 692, Ann. Cas. 1914B, 534; Carroll v. State, 32 Tex. Crim. Rep. 431, 40 Am. St. Rep. 786, 24 S.W. 100; Owens v. State, 39 Tex. Crim. Rep. 391, 46 S.W. 240; Ball v. State, 44 Tex. Crim. Rep. 489, 72 S.W. 384; Dabney v. State, 82 Miss. 252, 33 So. 973; State v. Kent (State v. Pancoast) 5 N.D. 516, 35 L.R.A. 518, 67 N.W. 1052; Holder v. State, 58 Ark. 473, 25 S.W. 279; People v. Molineux, 168 N.Y. 291, 62 L.R.A. 193, 61 N.E. 286.
Impeaching witnesses are not required, in fact, they are not allowed, to speak from their own knowledge as to acts and transactions from which the character or reputation of the other witness has been derived. They must speak from their own knowledge only of what is generally said of the other by those among whom he resides and associates. Crabtree v. Kile, 21 Ill. 180; Crabtree v. Hagenbaugh, 25 Ill. 233, 79 Am. Dec. 324.
The evidence must be confined to general reputation, and it cannot be permitted as to particular facts. Taylor v. Ryan, 15 Neb. 573, 19 N.W. 475; Gilliam v. State, 1 Head, 38, 73 Am. Dec. 161; Blue v. Kirby, 1 T. B. Mon. 195, 15 Am. Dec. 95; Shaw v. Emery, 42 Me. 59; Root v. Hamilton, 105 Mass. 22; Foster v. Newbrough, 58 N.Y. 481; Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72; Rudsdill v. Slingerland, 18 Minn. 380, Gil. 342; Newman v. Mackin, 13 Smedes & M. 383; Spears v. Forrest, 15 Vt. 435; Thurman v. Virgin, 18 B. Mon. 792; People v. Yslas, 27 Cal. 631; State v. Morse, 67 Me. 428; Kilburn v. Mullen, 22 Iowa 498; People v. Josephs, 7 Cal. 129.
A statement made by the complainant, within meaning of the law, must be a voluntary act of the injured party; it is the voluntary recital of a wrong that is received, to strengthen the testimony of a woman who claims that she has been ravished. State v. Bebb, 125 Iowa 494, 101 N.W. 189; State v. Werner, 16 N.D. 83, 112 N.W. 60; People v. Wilmot, 139 Cal. 103, 72 P. 838; Cunningham v. People, 210 Ill. 410, 71 N.E. 389; Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387, 10 A. 219; State v. Pollard, 174 Mo. 607, 74 S.W. 969; State v. Peres, 27 Mont. 358, 71 P. 162; 33 Cyc. 1468.
The statement must be a part of res gestae. It was not so in this case. State v. Murphy, 17 N.D. 58, 17 L.R.A.(N.S.) 609, 115 N.W. 84, 16 Ann. Cas. 1133; Rice, Ev. §§ 212 et seq.; People v. Lane, 100 Cal. 379, 34 P. 856; People v. Tucker, 104 Cal. 440, 38 P. 195; Cole v. State, 125 Ga. 276, 53 S.E. 958; Warrick v. State, 125 Ga. 133, 53 S.E. 1027; Johnson v. State, 129 Wis. 146, 5 L.R.A. (N.S.) 809, 108 N.W. 55, 9 Ann. Cas. 923; Stevison v. State, 48 Tex. Crim. Rep. 601, 89 S.W. 1072; State v. Mickler, 73 N.J.L. 513, 64 A. 148; 2 Jones, Ev. §§ 347, 348 and notes.
If not a part of the res gestae, such statements are never admitted as original declarations. They are only for the purpose of corroboration. Lawson v. State, 17 Tex.App. 292; Thompson v. State, 38 Ind. 39; Phillips v. State, 9 Humph. 246, 49 Am. Dec. 709; Griffin v. State, 76 Ala. 29; Laughlin v. State, 18 Ohio 99, 51 Am. Dec. 444; State v. Emeigh, 18 Iowa 122; State v. Mitchell, 68 Iowa 116, 26 N.W. 44; State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90.
If the injured female is not produced as a witness, or is incompetent by reason of immature age, evidence of her statements made soon after the commission of the deed cannot be admitted. People v. McGee, 1 Denio, 19; Weldon v. State, 32 Ind. 81; People v. Graham, 21 Cal. 261; Com. v. Gallagher, 2 Clark (Pa.) 297; State v. Emeigh, 18 Iowa 122.
Such evidence is confined to corroboration, and cannot be used to supply additional facts not otherwise proved. State v. Wheeler, 116 Iowa 212, 93 Am. St. Rep. 236, 89 N.W. 978; Scott v. State, 48 Ala. 420; State v. Shettleworth, 18 Minn. 208, Gil. 191; Reg. v. Guttridge, 9 Car. & P. 471; State v. Dudley, 147 Iowa 645, 126 N.W. 813; State v. Wheeler, 116 Iowa 212, 93 Am. St. Rep. 236, 89 N.W. 978; State v. Pollard, 174 Mo. 607, 74 S.W. 969; Cunningham v. People, 210 Ill. 410, 71 N.E. 389.
The court clearly erred in admitting all the evidence of the several acts of intercourse as testified by the complaining witness. State v. Acheson, 91 Me. 240, 39 A. 570; People v. Williams, 133 Cal. 168, 65 P. 323; State v. Palmberg, 199 Mo. 233, 166 Am. St. Rep. 476, 97 S.W. 566.
While an appellate court will not disturb a judgment for an immaterial error, yet it should appear beyond doubt that the error of which complaint is made did not and could not have prejudiced the rights of the objecting party. Derry v. Cary, 5 Wall. 795, 18 L. ed. 653; Norfolk & P. Traction Co. v. Miller, 98 C. C. A. 453, 174 F. 607; Gilmer v. Higley, 110 U.S. 47, 28 L. ed. 62, 3 S.Ct. 471; Taggart v. Bosch, 5 Cal. Unrep. 690, 48 P. 1092; Thomas v. Carey, 26 Colo. 485, 58 P. 1093; Norfolk & W. R. Co. v. Briggs, 103 Va. 105, 48 S.E. 521; Henry v. Colorado Land & Water Co. 10 Colo.App. 14, 51 P. 90; Cooke v. McAleena, 18 Misc. 219, 41 N.Y.S. 479; Comaskey v. Northern P. R. Co. 3 N.D. 279, 55 N.W. 732; Moore v. Booker, 4 N.D. 558, 62 N.W. 607; Hegar v. De Groat, 3 N.D. 354, 56 N.W. 150; McKay v. Leonard, 17 Iowa 569; Freeman v. Rankins, 21 Me. 446; Hayne, New Trial, § 287.
M. J. Englert, State's Attorney, and H. A. Olsberg, Assistant State's Attorney, for respondent.
The courts are becoming more unanimous in the view that statutory rape cases form an exception "to the general rule that, upon a trial for an alleged offense, the commission of another offense cannot be shown." State v. Allison, 24 S.D. 622, 124 N.W. 747.
In prosecution for rape committed upon a girl under the age of consent and without force, evidence is admissible of other acts of intercourse between defendant and the prosecuting witness. State v. Reineke, 89 Ohio...
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