State v. Metcalf, 11582

• Decision Date: 21 July 1969
• Docket Number: No. 11582,11582
• Citation: 153 Mont. 369,457 P.2d 453
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Charles Allen METCALF, Defendant and Appellant.
• Court: Montana Supreme Court

Page 453

457 P.2d 453

153 Mont. 369

The STATE of Montana, Plaintiff and Respondent, v. Charles Allen METCALF, Defendant and Appellant.

No. 11582.

Supreme Court of Montana.

Submitted May 14, 1969.

Decided July 21, 1969.

Francis J. McCarvel, argued, Kalispell, for appellant.

Robert L. Woodahl, Atty. Gen., John C. Weingartner, Asst. Atty. Gen., argued, Helena, H. James Oleson, County Atty., argued, Kalispell, for respondent.

JAMES T. HARRISON, Chief Justice.

Appeal from the district court of Flathead County following jury trial and entry of judgment sentencing defendant to a term of 10 years in the state prison. Defendant was charged with the crime of forcible rape of an adult female, not his wife, and on his appeal contends that the district court erred upon the trial and in denying certain motions made by defendant. Defendant made no statements nor did he take the stand in his own defense.

The essential facts disclosed by the evidence indicate that on the evening of January 17, 1968 prosecutrix left her home at approximately 8:45 p.m., driving a 1960 Volkswagen, and went to a Kalispell bowling alley. After completing league bowling at approximately 12:15 a.m. January 18, prosecutrix left the bowling alley, walked to her car, and entered on the driver's side. While attempting to start the car, she was accosted by a strange man, later identified as the defendant. Prosecutrix testified the defendant grabbed her by the throat, making it almost impossible to breathe, and literally picked her up and placed her in the passenger seat of the car. She immediately felt her life was in danger, and decided it would be best to cooperate. Defendant told her that he would let her go if she did exactly as she was told.

After a brief struggle, defendant released his grip on her throat and ordered prosecutrix to put her head between her legs. With defendant applying pressure to the back of her head with one hand, he started the Volkswagen, drove away from the bowling alley, and eventually headed west on U. S. Highway 2, toward Libby. During the journey defendant told prosecutrix '* * * to do as I was told, not to look up, because he would hate to beat me up or rough me up in any way.'

Some distance from Kalispell, defendant turned off the main highway and drove on a gravel road where he subsequently stopped the car and shut off the motor. After a short time, defendant ordered the prosecutrix into the back seat of the car where he disrobed her. Prosecutrix testified that while she did nothing to resist physically, she was continually in fear of her life. After defendant was partially undressed, the act of forcible rape was committed, without the consent of the prosecutrix.

After the act, prosecutrix testified she was afraid that defendant might make good an earlier threat and kill her. She attempted to 'pacify' him with conversation. Later defendant drove the car back to Kalispell where he parked it in front of the bowling alley. There defendant ordered the prosecutrix out of her car and into his, a Cadillac convertible parked nearby. Within a few minutes, Kalispell police arrived at the scene. Testimony indicates that defendant had aroused the suspicions of one of the officers earlier in the evening, consequently they had been keeping an eye on defendant's car, waiting for his return. For this reason the police approached defendant's car at this particular time.

While asking defendant for identification the officer noticed that prosecutrix was crying. She was asked if there was anything wrong, to which she answered in the affirmative. As she was helped from defendant's car, she was in a near-hysterical state and said she had been raped. The officers arrested defendant and took them both to the police station.

Prosecutrix early in the morning of January 18th was examined by a doctor whose specialty was obstetrics and gynecology. He testified that when he first observed prosecutrix she was under considerable emotional strain, her eyes were swollen, she had been crying and her hair was messed up. The doctor made an examination of the prosecutrix's neck and her pelvic area. In the pelvic region there were no signs of trauma or bleeding and no sperm was found on miscroscopic examination, but a foreign piece of material was found in the vagina which the doctor sealed in a slide and marked for identification. Further, the doctor explained how intercourse could have been had without deposit of sperm. There were some contusions on her neck, indicating pressure marks or marks of force. From his examination of the patient and from a medical point of view the doctor stated he was satisfied that prosecutrix had been raped on that night. After the examination prosecutrix gave police officers a statement and was subsequently taken to the Flathead county jail where she identified defendant.

All of the clothing that defendant and prosecutrix were wearing at the time of his arrest were sent to the F.B.I. laboratory. Analysis revealed that particles of the prosecutrix's clothing were found on defendant's clothing, and the foreign matter found in her vaginal vault was a fiber identical to the fibers on defendant's sport coat.

Defendant, on advice of counsel, at no time made a statement to any officer, nor did he testify in his own behalf at the trial. The jury returned a verdict of guilty and this appeal followed.

In addition to the issue of whether the verdict was contrary to the law and the evidence, the defendant contends the district court erred in the following particulars:

(1) In giving instruction No. 23, and not giving defendant's proposed instruction No. 10;

(2) In allowing testimony as to defendant's actions two nights prior to the commission of the crime;

(3) In not allowing testimony as to the demeanor of the prosecutrix at the time her deposition was taken, and

(4) In denying the following defense motions: (a) to dismiss at the close of the State's case in chief; (b) for a directed verdict at the close of all testimony, and (c) for a new trial.

Defendant alleges prejudicial error in the giving of instruction No. 23 on the ground the instruction amounted to an intimation to the jury that the impact of their verdict could be lessened by the court's imposition of a light sentence. Instruction No. 23 as given by the court, was as follows:

'Under the laws of Montana, as applied to this case, a person guilty of rape is punishable by imprisonment in the Montana State Prison for a term which must not be less than two years nor more than ninety-nine years, but may be for any specified term there-between. Further, the Court has the discretion of releasing the defendant on probation, deferring the imposition of sentence for a period not to exceed three years, suspend the execution of the sentence up to the maximum sentence allowed for the particular offense or impose any combination thereof.

'In the event you return a verdict of guilty of the crime of rape, the Judge must assess and declare the punishment.

'In the event you return a verdict of not guilty, the defendant must be released and discharged.'

Defendant argues this instruction prejudices his right to an acquittal for the reason that those members of the jury who were disposed to vote him innocent could more easily be persuaded to change their position, knowing that a suspended or otherwise minimal sentence would result. With this contention we cannot agree.

Instructions are given to advise the jury on the applicable law. Here, the court informed the jury of the possible punishment defendant might receive if he were found guilty and the discharge he would be entitled to if he were found innocent. In reviewing this instruction, it is found to be almost a verbatim statement of the law, (sections 94-4104; 95-2202, 95-2206, R.C.M.1947), and therefore there can be no argument that this instruction incorrectly stated the law in Montana. Nor can it be said the jury was misled by such an instruction.

When taken in conjunction with instruction No. 23, which instructed the jury on their sole duty-to find the defendant guilty or not guilty-the obligation of consideration of penalty was expressly reserved to the judge. This cannot be said to be improper.

Defendant also contends that in view of the fact the State notified defendant and his attorney of the intention to seek increased punishment as a prior convicted felon under section 94-4713, R.C.M.1947, he was further prejudiced by the giving of instruction No. 23. This contention is wholly without merit. The State, pursuant to the provisons of section 95-1506, R.C.M.1947, properly gave notice of the intention to seek increased punishment. Under the provisions of section 95-1506(b), R.C.M.1947, the notice and the charge of prior conviction '* * * shall not be made public nor in any manner be made known to the jury before the jury's verdict is returned * * *.' A careful review of the evidence in this case shows that the provisions of this section, as well as the provisions of section 94-4713, R.C.M.1947, were complied with. The jury was not in possession of the information relating to defendant's prior conviction, and could not have been prejudiced thereby.

Further, defendant contends the district court erred by refusing to give defendant's proposed instruction No. 10 as a statement of the law as enunciated by this Court in the case of State v. Needy, 43 Mont. 442, 117 P. 102. We agree that the instruction in question states the law applicable to the facts as set out in the Needy case, supra. However, we cannot agree that it states the correct application of the law under the facts now before the Court.

Defendant's proposed instruction No. 10 read as follows:

'You are instructed that while the prosecutrix may not have given ready consent to the act of intercourse, if she did not offer any physical resistance which required force to overcome, within the...