State v. McCoy

• Decision Date: 16 February 1903
• Docket Number: 14,701
• Citation: 33 So. 730,109 La. 682
• Court: Louisiana Supreme Court
• Parties: STATE v. McCOY

33 So. 730

109 La. 682

STATE v. McCOY

No. 14,701

Supreme Court of Louisiana

February 16, 1903

Appeal from judicial district court, parish of Lafayette; Conrad De Baillon, Judge.

Joseph alias Daniel, McCoy was convicted of crime, and appeals. Reversed.

John Lewis Kennedy, for appellant.

Walter Guion, Atty. Gen., and William Campbell, Dist. Atty. (Lewis Guion, of counsel), for the State.

OPINION

MONROE, J.

The defendant in this case was convicted of rape and sentenced to death, and, having appealed, presents his case to this court by means of certain bills of exception, which will be considered in inverse order with respect to the numbers given them in the transcript.

Bill 8 shows that the defendant, having taken the stand as a witness in his own behalf, was asked on cross-examination, "Have you ever been convicted and sent to the penitentiary from this parish?" to which his counsel objected "on the ground that it was not competent for the state to attack the character of the accused until he had attempted to prove it good." The district attorney and the trial judge, whose statements are incorporated in the bill, say that the purpose of the question was to elicit testimony affecting the credibility of the witness, and not the character of the accused, and the judge further says that the jury were so instructed. The objection was properly overruled. It is admissible to ask a witness whether he has not been in the penitentiary. Real v. People, 42 N.Y. 270; Wharton Cr. Ev. §§ 474, 488. There might be some doubt as to the right to prove conviction by oral evidence over an objection that the record should be produced, but that objection was not made, and Judge Cooley, speaking for the court in Clemens v. Conrad, 19 Mich. 170, expressed the opinion, for which he gives good reasons, that, where the accused himself is on the stand, it should not be sustained.

Bills 6 and 7 show that the accused had testified that he had been suffering from a specific venereal disease for three weeks before the date of the alleged rape, and that the coroner having examined him and the prosecuting witness, by order of the court, for the purpose of ascertaining whether they were both suffering from the same complaint, was interrogated, and testified as to the result, to which the counsel for the accused objected on the ground that the matter was privileged, and that, as to the accused, the admission of the evidence would be in effect to compel him to testify against himself.

No privilege was claimed by the witness or the prosecutrix, and, as it appears that the accused himself had testified that he had been suffering with the disease with which the coroner found him suffering, it is evident that he could have sustained no injury from the examination, which confirmed his own testimony. We think, under these circumstances, that the objections were properly overruled.

Bill 2 shows that the prosecutrix, being on the stand as a witness, and having testified that the sheriff of the parish visited her house on the day following that upon which the crime is alleged to have been committed, for the purpose of investigating the same, was asked, "Did you make a complaint to J. A. Broussard, sheriff of the parish, and, if so, when did you make that complaint?" to which was objected that it was "not permissible for the state to prove a complaint or statement on the part of the prosecutrix made 24 hours after the alleged commission of the crime."

Bill 4 shows that the sheriff, having testified that he had visited the house of the prosecutrix on the day following that upon which the crime is said to have been committed, for the purpose of making an investigation, and that he then saw the prosecutrix for the first time after the alleged commission of the crime, was asked, "Did Mary Alice Spell make a complaint to you of what had happened to her?" to which the same objection was urged as to question propounded to the prosecutrix. The judge a quo states that in neither case was the witness permitted to give the details of the complaint, and, though there appears to be some difference between him and the counsel upon the subject, we must accept his statement. The failure, when unaccounted for, of the victim of a rape to complain of the outrage, throws suspicion on the case of the prosecution (Whart. Cr. Law [19th Ed.] § 566), and it is well settled that the fact that such complaint was made may be proved on the trial of the party charged with the crime (Whart. Cr. Ev. [9th Ed.] § 273). Nor is it necessary to the admissibility of such evidence that the making of the complaint should have been part of the res gestae. Delay, when accounted for, does not exclude such testimony. Whart. Cr. Law (9th Ed.) § 566. The objections stated in these bills were therefore properly overruled.

Bill 3 reads as follows: "Be it remembered that * * * after the prosecuting witness * * * had given her testimony, and had fixed the time of the alleged rape at between 2 and 3 o'clock of the morning of November 12, 1902, and [had testified] that she recognized the accused as the perpetrator at the time, and further testified that between 7 and 8 o'clock of the same morning she complained of the outrage * * * to one Solomon Morgan, and recited in her testimony the details of the complaint alleged to have been made to Morgan, and after * * * Morgan had testified, as a state witness, and on cross-examination had given an account of the alleged complaint made by the prosecutrix to him, which varied essentially from that given by the prosecutrix in her testimony, in that Morgan testified that in her complaint to him the prosecutrix expressed herself as being uncertain of the identity of the perpetrator, and said that she saw two men running away from her house after the rape was committed, whereas the prosecutrix testified that she told Morgan that the accused had ravished her, and made no mention whatever of two men being implicated in the alleged crime, Joseph Spell, a brother of the prosecutrix, was sworn as a state witness, and, after testifying on direct examination that the prosecutrix had made a complaint to him at about 1 p. m. of the day of the alleged crime, the following question was propounded to him, on cross-examination: 'Q. Did Miss Spell, in her complaint to you, state how many persons were at her house the night previous, at the time she alleges she was ravished?' whereupon the district attorney objected, on the ground that the witness, Mary Alice Spell, was not put on her guard as to the time and place to be contradicted by the witness now testifying.

"Counsel for the defendant submitted that the object of the question was to prove the fact directly involved in the issue of this case, namely, whether one individual or two individuals participated in it, and their identity; that the testimony was admissible without the necessity of placing the prosecutrix on her guard, as the testimony applied to the central fact in issue.

"(2) That the prosecutrix was sufficiently placed on her guard, if such a proceeding was necessary, by calling her attention to the fact that the defense proposed to contradict the terms of the complaint, as given in her testimony, in so far as the identity of the perpetrator of the crime was concerned; she being told, at the time, that the terms of her different complaints, as given in her testimony, varied with the statements actually made in such complaints, and she was placed on her guard as to the contradiction.

"The court maintained the objection of the district attorney, and refused to permit the state's witness to answer the question, or to permit him to testify on cross-examination as to any details of the complaint alleged to have been made to him by the prosecutrix.

"By the District Attorney: The witness, Joseph Spell, when called as a witness on behalf of the state, the only question propounded to him by the district attorney was whether or not Miss Mary Alice Spell made a complaint to him, or not, and the answer of said witness was 'Yes.' The question asked the said witness, Joseph Spell, 'Did Mrs. Foreman, in her complaint to you, state how many persons were at her house the night previous, at the time she was ravished?' was properly objected to, because it intended to contradict the said Miss Mary Alice Spell. Said question was not proper for the reason that she had never been put on her guard as to the time and place and by whom she would be contradicted, when testifying in chief, and that the said question was properly overruled by the court.

"By the Court: The court did not refuse to permit Joseph Spell to testify, on cross-examination, as to any details of the...