State v. Mason

CourtUnited States State Supreme Court of Idaho
Citation41 Idaho 506,239 P. 733
PartiesSTATE, Respondent, v. LESTER S. MASON, Appellant
Decision Date26 September 1925

APPEAL AND ERROR - STATUTORY RAPE - CORROBORATION OF PROSECUTRIX - WHEN SUFFICIENT-ASSIGNMENT OF ERROR-WHEN INSUFFICIENT - INSTRUCTION TO ACQUIT - REFUSAL TO GIVE - NOT REVERSIBLE ERROR.

1. 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.

2. An assignment specifying that the court erred in giving instructions to the jury, without setting out in what particulars the instructions are erroneous, is too general unless such instructions could not be the law under any condition.

3. Reversible error cannot be predicated upon the refusal of the court to give an advisory instruction to acquit.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

From a judgment of conviction for statutory rape defendant appeals. Affirmed.

Affirmed.

Robert E. Leitch and F. C. Keane, for Appellant.

Where the testimony of the prosecutrix in a rape case is contradictory, and her story as to what occurred is highly improbable and unreasonable, her uncorroborated testimony is not sufficient to justify a verdict of guilty, nor to support a judgment of conviction. (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. Andrus, 29 Idaho 1, 156 P. 421; State v. Short, 39 Idaho 446, 228 P. 274; State v Bowker, 40 Idaho 74, 231 P. 706.)

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

A person may be convicted of rape upon the testimony of the prosecutrix even if there is no direct evidence corroborating her testimony, when her reputation for truth and chastity is unimpeached and the circumstances surrounding the commission of the offense are clearly corroborative of her statement. (State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Short, 39 Idaho 446, 228 P. 274; State v. Bowker, 40 Idaho 74, 231 P. 706.)

The instructions given by the court on the matter of corroborating the testimony of the prosecutrix are correct. (State v. Anderson, supra; State v. Short, supra.)

The giving of an advisory instruction to acquit is a matter of discretion with the trial court and its action in the premises is not reviewable by the supreme court. (State v. Murphy, 29 Idaho 42, 156 P. 908; State v. Simpson, 31 Idaho 591, 173 P. 748.)

WILLIAM A. LEE, C. J. Wm. E. Lee, Givens and Taylor, JJ., and McNaughton, District Judge, concur.

OPINION

WILLIAM A. LEE, C. J.

--Appellant was charged, under C. S., sec. 8262, subd. 1, with statutory rape, committed upon the person of the prosecutrix, a female under the age of eighteen years. This appeal is from a judgment of conviction and appellant assigns as error (1) that the evidence is insufficient to justify the verdict or to support the judgment in that the testimony of the prosecuting witness is contradictory, its truth inherently improbable, and that it is not corroborated by the testimony of any other witness or by circumstances surrounding the commission of the offense; (2) that the court erred in refusing to give an advisory instruction to acquit; (3) insufficiency of the evidence to justify the entry of a judgment; (4) that the court erred in giving certain instructions for the reason that they do not correctly state the law.

The first and fourth assignments are sufficient to raise the principal questions presented by the record. The first relates to the insufficiency of the evidence and the specifications of its insufficiency appear to be predicated upon the rule announced in State v. Anderson, 6 Idaho 706, 59 P. 180, and the later decisions of this court that have followed the rule that a defendant may be convicted of rape upon the uncorroborated testimony of the prosecutrix, only when the character of the prosecutrix for chastity as well as for truth, is unimpeached and the facts and circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix.

The information charges that the offense was committed on or about the first day of May, 1924. It is not controverted that the prosecutrix was under the age of consent and not the wife of appellant; that she became pregnant and on January 16, 1925, gave birth to a child. She testified that appellant began keeping company with her in August, 1923, and often came to her home and that the two frequently went out together. It also appears from her testimony that he took her in an automobile to different places in that locality and from the evidence there is no question but that the prosecutrix and appellant were, during this time, frequently together under such circumstances that an opportunity to commit the offense was present.

It was said in State v. Short, 39 Idaho 446, 228 P. 274 and State v. Bowker, 40 Idaho 74, 231 P. 706, that the mere opportunity for the commission of the offense is not sufficient corroboration under the rule as stated in State v. Anderson, supra, wherein the court said, "and when the facts and circumstances surrounding the commission of the offense are corroboration and not...

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17 cases
  • State v. Elsen
    • United States
    • Idaho Supreme Court
    • December 18, 1947
    ...but should also be of such a character as to make it appear probable that the accused committed the offense. * * *" State v. Mason, supra [41 Idaho 506, 239 P. 734]. * * The uncorroborated testimony of the prosecutrix is generally considered insufficient to sustain a conviction where it is ......
  • State v. McClurg, 5622
    • United States
    • Idaho Supreme Court
    • June 25, 1931
    ... ... such order is not reviewable on appeal. ( State v ... Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902; ... State v. Stevens, 48 Idaho 335, 282 P. 93; State ... v. Shelton, 46 Idaho 423, 267 P. 950; State v ... Smith, 46 Idaho 8, 265 P. 666; State v. Mason, ... 41 Idaho 506, 239 P. 733; State v. Brassfield, 40 ... Idaho 203, 232 P. 1; State v. Foell, 37 Idaho 722, ... 217 P. 608; State v. Hanson, 37 Idaho 734, 219 P ... 1062; State v. Suennen, 36 Idaho 219, 209 P. 1072; ... State v. Chacon, 36 Idaho 148, 209 P. 889.) ... ...
  • State v. Byers
    • United States
    • Idaho Supreme Court
    • April 1, 1981
    ...that crime. State v. Adair, 99 Idaho 703, 587 P.2d 1238 (1978); State v. Elsen, 68 Idaho 50, 187 P.2d 976 (1947); State v. Mason, 41 Idaho 506, 239 P. 733 (1925). See State v. Haskins, 49 Idaho 384, 289 P. 609 (1930); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916). As stated in State v. Mas......
  • State v. Cacavas
    • United States
    • Idaho Supreme Court
    • May 3, 1935
    ... ... (State v. McClurg, 50 Idaho 762, 300 P. 898; ... State v. Stevens, 48 Idaho 335, 282 P. 93; State ... v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902; ... State v. Shelton, 46 Idaho 423, 267 P. 950; ... State v. Smith, 46 Idaho 8, 265 P. 666; State v ... Mason, 41 Idaho 506, 239 P. 733; State v ... Brassfield, 40 Idaho 203, 232 P. 1; State v ... Foell, 37 Idaho 722, 217 P. 608; State v ... Suennen, 36 Idaho 219, 209 P. 1072; State v ... Chacon, 36 Idaho 148, 209 P. 889.) ... Judgment ... affirmed ... Budge ... and Ailshie, ... ...
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