State v. Madrid

• Decision Date: 07 July 1953
• Docket Number: No. 7912,7912
• Citation: 74 Idaho 200,259 P.2d 1044
• Parties: STATE v. MADRID.
• Court: Idaho Supreme Court

Page 1044

259 P.2d 1044

74 Idaho 200

STATE v.MADRID.

No. 7912.

Supreme Court of Idaho.

July 7, 1953.

Rehearing Denied Sept. 2, 1953.

Anderson & Anderson, Pocatello, for appellant.

Robert E. Smylie, Atty. Gen., J. R. Smead and Leonard H. Bielenberg, Asst. Attys.Gen., Hugh C. Maguire, Jr., Pros.Atty. for Bannock County, and P. A. McDermott, Pocatello, for respondent.

THOMAS, Justice.

Appellant, who was 39 years of age, was charged with and convicted of the crime of committing lewd and lascivious acts upon his daughter, then of the age of 11 years.From the judgment of conviction and from an order denying a new trial, this appeal was taken.

The complaining witness testified that on the particular date her father, while purportedly taking her to the postoffice in the family car, drove to the Purina Chow Mill, in Pocatello, where he committed the alleged acts in the car; that following the commission thereof they returned to the family residence and that she did not advise her mother about the matter until some twelve days later; appellant denied her testimony in every material respect in connection with the offense which she had detailed at great length upon the witness stand; a doctor, who was called to testify for and on behalf of the State, testified that he examined the complaining witness sometime early in the month of November, two weeks or more subsequent to the alleged commission of the offense.Without detailing the general examination which he made, suffice to say that in no respect did his testimony tend to corroborate the testimony of the complaining witness; no other witnesses were called for and on behalf of the State.The evidence of the defense consisted of the testimony of the accused and also the testimony of some alibi witnesses as well as that of a doctor called as a medical expert.

It is urged that the prosecuting witness who was twelve years old was not competent to testify because she did not understand the nature, quality, obligation and meaning of an oath.This assignment of error is without merit.The record discloses that the witness was questioned on voir dire and replied that she knew the difference between telling the truth and telling a falsehood.She also testified she did not know what would happen to her if she told a falsehood but, on further questioning, she testified in this respect that if she told things which were not true she would be punished by God.The examination as to her qualifications disclosed that she was capable of receiving just impressions and relating them truly to the jury; the trial judge correctly determined as a matter of law that the witness was qualified and competent to testify under the statutes.Secs. 9-201and9-202, I.C.;State v. Elsen, 68 Idaho 50, 187 P.2d 976;State v. Cosler, 39 Idaho 519, 228 P. 277;State v. Harp, 31 Idaho 597, 173 P. 1148;People v. Carpenter, 3 Cal.App.2d 746, 40 P.2d 524;Noble v. State, 253 Ala. 519, 45 So.2d 857.

Appellant contends that the court erred in permitting the prosecuting witness and her mother to sit in court and cry and weep in the presence of the jury.Near the close of the cross-examination of Roy Madrid, the 14 year old son of the accused, who had lived with his father's parents since he was about one year old, the following transpired:

'Q.Have you been to see your mother, Roy, since last October?A.I can't remember; since he was arrested I haven't.

'Q.Youhave been to see your mother at all?A.No.'

This concluded the cross-examination of Roy and immediately counsel for the accused objected to the crying and weeping above-mentioned and the following is disclosed by the record:

'Mr. Anderson: Now, if the court please, if these people are going to sit here and weep I want to ask to have them excluded.

'The Court: Well, go ahead.

'Mr. Anderson: Well, I want to show that the woman, the wife of Louis Madrid, and the witness Rachel Madrid, while Roy Madrid was on the witness stand, are sitting here crying before the jury, and we assign it as prejudicial and improper to allow that kind of conduct in the presence of the jury in this case, and particularly on the part of the woman, Mrs. Louis Madrid, and we ask that they be excluded from the courtroom.

'Mr. McDermott: If the court please, we object to that on the ground that these people are human beings and have sentiments and feelings, and they can't always control them.

'Mr. Anderson: Well, we object to them sitting here and putting on an act before the jury, that is what we object to, and we hope that the jury can see through it.

'The Court: Well, proceed, gentlemen.Call your next witness.

'Mr. Anderson: Does your Honor deny----

'The Court: Yes, they are all right.

'Mr. Anderson: We except to the ruling of the Court and remarks of the court that they are all right in the presence of the jury.'

From the record, it is not clear as to just when the emotional manifestations commenced and their duration.Neither is it clear what the court meant when in the ruling made refusing to exclude these people from the courtroom, he remarked, 'They are all right'.Whether the court meant that they had ceased their emotional demonstrations at that time is by no means clear from the record; on the other hand, it is equally uncertain as to whether or not such demonstrations either continued or were thereafter repeated.

Appellant did not ask that the court reprimand and admonish these people to desist from further demonstrations, or ask the court to instruct the jury in connection with any such matter but simply asked that they be excluded from the courtroom.

The trial of a case is open to the public and generally the exclusion of witnesses and others therefrom lies within the sound discretion of the trial court.Secs. 1-1601,1-1602, I.C.;State v. Dangelo, 182 Iowa 1253, 166 N.W. 587.

The court in the exercise of its judicial discretion did not err in refusing the request to excludethese people from the courtroom; however, appellant asserts that irrespective of whether or not they were excluded from the courtroom, their weeping in the presence of the jury was highly improper and prejudicial to appellant.

Such emotional demonstrations often occur during the course of a trial in felony cases; this is well known both to the court and to counsel; uncontrollable manifestations of grief on the part of relatives of the accused or the prosecuting witness are quite common in such instances.Here we have a situation where a grief stricken mother and her little daughter were emotionally overcome while the 14 year old son and brother who had lived with his father's parents since early childhood was on the witness stand.There is no showing in the record that such demonstrations were designed or planned.The crucial question is whether such emotional demonstrations had the effect of denying accused a fair trial to which he was entitled.

It is a general proposition of law, well recognized, that it is the duty of the court to see that public sentiment is not expressed in the presence of the jury in such a manner that it might influence the verdict and thus operate to deny the accused his right to a fair and impartial trial.Such conduct might well furnish grounds for a reversal of a judgment of conviction unless steps are taken promptly to suppress such improper conduct and check its repetition; however, while demonstrations are always improper, it does not necessarily follow that they are of such nature as to affect or influence the minds of the jury to the prejudice of the accused; if, from the record, such demonstrations do not appear to have affected or influenced the minds of the jury to the prejudice of the accused then they are neither grounds for a new trial nor reversal even though the court does not take immediate steps to suppress such or prevent their repetition; this is especially so, where there is no showing that such demonstrations either continued or were subsequently repeated after the matter was called to the attention of the court; the crucial question is always whether or not such manifestations were prejudicial to the rights of the accused.39 Am.Jur., § 94, p. 108;53 Am.Jur., § 43, p. 56andsec. 997, p. 692;23 C. J. S., Criminal Law, § 1449, p. 1207;24 C. J. S., Criminal Law, § 1903, pages 910 & 911;Millican v. State, 63 Tex.Cr.R. 440, 140 S.W. 1136.

On the record before us there is no showing that such manifestations did not cease immediately upon the request of counsel that the mother and daughter be removed from the courtroom; there is nothing in the record which in anywise indicates that the demonstrations were at any time thereafter repeated; error is never presumed, it must be shown.We recognize that there may be instances depending upon the particular facts and circumstances and the showing made in the record in which such emotional outbursts would be considered so highly prejudicial to the rights of the accused as to require a reversal of judgment.It would serve no useful purpose to discuss and analyze the authorities which deal with this matter; it is within the sound discretion of the trial judge to determine the effects of such demonstrations and to take whatever steps are deemed necessary and proper to safeguard the rights of the accused to a fair and impartial trial; however, in the absence of a clear showing that such demonstrations were prolonged and repeated and that the jury was improperly affected thereby to the prejudice of the accused, we can see nothing upon which to predicate prejudicial error in this regard.

It is urged by appellant that the prosecuting attorney was guilty of misconduct in asking impeaching questions of appellant's father, Antonio Madrid, on cross-examination, and not following them up with impeaching evidence.This witness was asked under cross-examination if he had not prevailed upon the mother of the prosecutrix to have the criminal action dismissed.The witness answered that he had...