State v. Moore

• Decision Date: 17 February 1925
• Docket Number: 2672.
• Citation: 233 P. 523,48 Nev. 405
• Parties: STATE v. MOORE.
• Court: Nevada Supreme Court

233 P. 523

48 Nev. 405

STATE v. MOORE.

No. 2672.

Supreme Court of Nevada

February 17, 1925

Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.

S Clyde Moore was convicted of the statutory crime of having carnal knowledge of a female child under 18 years of age, and he appeals. Affirmed.

W. D Jones, of Reno, for appellant.

M. A Diskin, Atty. Gen., Thos. E. Powell, Deputy Atty. Gen., L. D. Summerfield, Dist. Atty., and Harlan L. Heward, Deputy Dist. Atty., both of Reno, for the State.

DUCKER J.

The appellant was convicted of the statutory crime of having carnal knowledge of a female child under the age of 18 years, and sentenced to a term of imprisonment of not less than 50 years nor more than life. He appeals from the judgment and order denying his motion for a new trial.

The offense is alleged in the information to have been committed on the 20th day of October, 1923, or thereabouts. The complaining witness, Clara Moore, is the daughter of the appellant, and at the time of the offense charged was 16 years of age. Her mother died in Reno on the 2d day of July, 1923. She was in Oakland, Cal., when the mother died. She had previously lived in Reno with her father and mother, and after the latter died she returned to Reno on the 4th day of July, 1923. From that time until June 29, 1924, she lived with her father in Reno, except for a short period of time when she was with her father, who was working at a mine in another part of the state. The complaining witness gave birth to a child on June 29, 1924.

The information was filed on July 11, 1924. After the jury was impaneled, and at 25 minutes to 12 o'clock noon, appellant's counsel requested the court to take a recess until 1:30 of that day, stating as reasons therefor the shortness of time from filing of the information; that they had done a good half day's work in getting the jury; that he wanted all of the witnesses placed under the rule; and that he could have all of his witnesses in court by 1:30 to be instructed as to the rule. The court did not deem the reasons sufficient, and denied the request. Counsel excepted to the ruling of the court, and assigns it as error. There is no merit in the objection. The matter was entirely within the discretion of the court. Counsel for appellant claims that the evidence is insufficient to warrant the verdict.

The complaining witness testified as to various occasions on which the appellant had sexual intercourse with her, commencing in September, 1923, and continuing up to the time her child was born; that on some of these occasions he used force to compel her to submit; and that one of these occasions was on the night of October 20, 1923, in Reno, Washoe county, Nev. She testified as to the continuance of this conduct while they were on their way to and at the mine near Winnemucca, Nevada, and on their way back to Reno; that he slept in the same bed with her during January and February, 1924, and continued to do so until the child was born. She declared that he was the father of the child. Her brother Henry, a lad of 13 years, who lived with the appellant and the complaining witness in Reno, testified that some time after Christmas and New Years, following their return from the mine near Winnemucca, the father commenced sleeping in the same bed with the daughter; that this was his usual practice until the birth of the child; and that he saw them in bed together every morning for about 3 months. The cross-examination for these witnesses did not weaken their testimony. The appellant was a witness in his own behalf, and denied the statements of his children as to his sleeping with the daughter. He did not directly deny the act of sexual intercourse charged in the information, but we will assume that he did so indirectly by testifying that he never slept in the same bed with his daughter. The evidence is sufficient to sustain the verdict.

It is contended that there is a variance between the proof and the charge, in that the testimony of the state's witnesses shows that the father and daughter first slept together in January, 1924, whereas the charge in the information is laid in October, 1923. There is no variance in this respect. As previously stated, the daughter testified that her father had carnal knowledge of her on the night of October 20, 1923, the date fixed in the information. Their subsequent intimacy in sleeping together was admissible as showing the intimate relations existing between the parties, which tended to corroborate her testimony as to the specific charge in the information. The weight of modern authority is in accord with this view. People v. Thompson, 212 N.Y. 249, 196 N.E. 78, L. R. A. 1915D, 236, Ann. Cas. 1915D, 162; Penn v. State, 13 Okl. Cr. R. 367, 164 P. 992, L. R. A. 1917E, 668; Sykes v. State, 112 Tenn. 572, 82 S.W. 185, 105 Am. St. Rep. 972; State v. Henderson, 19 Idaho, 524, 114 P. 30; State v. Forsythe, 99 Iowa, 1, 68 N.W. 446; Leedom v. State, 81 Neb. 585, 116 N.W. 496; State v. Keeler, 52 Mont. 205, 156 P. 1080, L. R. A. 1916E, 472, Ann. Cas. 1917E, 619; People v. Koller, 142 Cal. 621, 76 P. 500.

It is contended that the court erred in allowing testimony as to the pregnancy of the complaining witness and the birth of the child, because neither was alleged in the information. Pregnancy and birth of a child are not elements of the statutory offense charged, and therefore had no place in the information. Both were established facts in this case, but they merely constituted evidence which tended to corroborate the testimony that appellant was guilty of the offense charged. State v. Henderson, supra. As stated in the case just cited, Mr. Underhill, in his work on Criminal Evidence, p. 693, says: "The birth of a child to the prosecuting witness on such a date as it would occur in the course of nature, assuming that she had had sexual intercourse with the accused at the date mentioned, is always relevant. * * *"

See, also, State v. Blackburn, 136 Iowa, 743, 114 N.W. 531; State v. Blackburn (Iowa) 110 N.W. 275; State v. Miller, 71 Kan. 200, 80 P. 51, 6 Ann. Cas. 58; State v. Walke, 69 Kan. 183, 76 P. 408; State v. Palmberg, 199 Mo. 233, 97 S.W. 566, 116 Am. St. Rep. 476; Woodruff v. State, 72 Neb. 815, 101 N.W. 1114; State v. Danforth, 73 N.H. 215, 60 A. 839, 111 Am. St. Rep. 600, 6 Ann. Cas. 557; People v. Flaherty, 27 A.D. 535, 50 N.Y.S. 574; State v. Robinson, 32 Or. 43, 48 P. 357; State v. Neel, 23 Utah, 541, 65 P. 494.

Appellant contends that the court committed reversible error in allowing the complaining witness to testify that he was the father of the child. There was no error in this. The evidence was admissible. State v. Miller, 71 Kan. 200, 80 P. 51, 6 Ann. Cas. 58. The birth of a child established an act of sexual intercourse which the complaining witness charged upon the appellant. Her declaration that he was the father of the child was corroborative in its tendency.

Mrs. Letha McGregor was sworn as a witness on behalf of the state, and testified that the complaining witness had told her that appellant was the father of the child. This is assigned as error. No proper objection was taken to the question which elicited the testimony. No ground was stated either in the objection or exception, and the objection was conditioned on the event of the answer being unfavorable to appellant. As stated in State v. Mangana, 33 Nev. 511, 112 P. 693, this court has often held that in both civil and criminal cases the particular ground of an objection or exception must be stated. The testimony was not strictly in rebuttal of any evidence introduced by the defense, but, in the absence of a specific objection, we must decline to consider it.

Appellant also assigns as error the testimony of Mrs. McGregor to the effect that he was cruel to his children. All of her testimony in this regard, with the exception of an answer to one question, was admitted without objection by the appellant. He cannot be heard to complain of it now. The state's attorney asked the following question of this witness: "Just state what you observed with regard to defendant's treatment of his children." To which the witness answered, "Well, I have lived some time off and on during all my life in my uncle's house, at one time or another; he has always been extremely cruel to his whole family." Counsel for appellant objected to the question, and took an exception to the ruling of the court. It will be observed that the answer stated an opinion or conclusion of the witness, but no motion was made to strike it for that reason. The question, we think, was a proper one in rebuttal, in view of the testimony of the appellant to the effect that his treatment of his children had not been cruel in character.

Error is assigned to the ruling of the court in not allowing the complaining witness to answer a question propounded to her on cross-examination as to what she was doing in Oakland, Cal., when her mother died. The ruling was proper. What the complaining witness was doing in California was wholly immaterial. It is not pointed out by counsel, nor does it otherwise appear how it was proper cross-examination. The court acted entirely within its discretion in disallowing the question.

The action of the court in questioning the boy, Henry Moore, in regard to his qualifications as a witness, and the court's criticism of counsel for appellant when he was conducting his cross-examination of the complaining witness, are assigned as errors. We see nothing improper in the action of the court in either instance, or anything that calls for comment.

It is claimed that the trial court's conduct in questioning the witness Henry in its criticism of counsel for appellant, and in sentencing the appellant to the state prison for...