State v. Moorman, 9798

• Citation: 321 P.2d 236,133 Mont. 148
• Decision Date: 07 February 1958
• Docket Number: No. 9798,9798
• Parties: STATE of Montana, Plaintiff and Respondent, v. Everett MOORMAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 236

321 P.2d 236

133 Mont. 148

STATE of Montana, Plaintiff and Respondent, v. Everett MOORMAN, Defendant and Appellant.

No. 9798.

Supreme Court of Montana.

Submitted Sept. 23, 1957.

Decided Jan. 16, 1958.

Rehearing Denied Feb. 7, 1958.

Sandall & Moses, Charles F. Moses, Billings, for appellant. Charles F. Moses argued orally.

Forrest H. Anderson, Atty. Gen., Robert J. Emmons, Asst. Atty. Gen., Joseph E. Buley, County Atty., Billings, for respondent. Joseph E. Buley, County Atty., and Robert J. Emmons, Asst. Atty. Gen., argued orally.

HARRISON, Chief Justice.

Defendant was found guilty of statutory rape by the verdict of a jury. Motion for a new trial was made and denied and this appeal followed. Five specifications of error are alleged by the defendant, all predicated upon the action of the district court in (1) sustaining objections to questions and offers of proof, (2) overruling objections to questions put to character witnesses on cross-examination, (3) denial of a motion for a continuance, (4) denial of the motion for a new trial, and (5) refusing to grant defendant's motion for a mistrial.

A statement of the facts in this case is not necessary for the purpose of this opinion and when required the particular evidence will be referred to.

The first contention of the defendant is that the court, by sustaining objections to questions propounded of witnesses for the state, limited the defendant's case in chief.

The testimony of the state's witnesses was confined to a period beginning at approximately 4:00 a. m. when the defendant met the complaint witness, and concluding when the defendant departed from the premises where the alleged offense occurred at approximately 6:30 a. m. Defendant argues that when the state limited its testimony to this period of time it eliminated from the jury any consideration of the investigation made by police officers, the result of any medical examination made thereafter, as well as any contrary statements made by the prosecuting witness.

While the defendant is presumed to be innocent until the contrary is proved, and the burden is on the state to prove the guilt of the defendant beyond a reasonable doubt, R.C.M.1947, Sec. 94-7203, and for that reason the burden of proof is at all times upon the state, yet there is a distinction between the burden of proof and the burden of the evidence. In criminal cases the burden of proof never shifts, but the burden of the evidence may shift frequently. Underhill, Criminal Evidence, Sec. 50, p. 78 (5th ed.). Such is the situation in this case. The state presented sufficient evidence to make out a prima facie case and rested. At any time during cross-examination of the witnesses in the state's case in chief, defendant could have laid a foundation for impeachment, but he failed to do so. He then attempted in his case in chief to lay such foundation by calling the state's witnesses as adverse witnesses under the provisions of section 93-1901-9, R.C.M.1947, relating to calling the opposite party, his employee or agent, contending that under the provisions of section 94-7209, R.C.M.1947, the rules of evidence in civil actions are applicable to criminal cases. In a criminal case the State of Montana is the opposite party to the defendant, section 94-4804, R.C.M.1947, and the adverse witness statute is not applicable to a criminal proceeding.

Defendant made no effort to produce the evidence of the police officers or the medical examination, though counsel conceded upon the argument that such witnesses were available if it had been desired to call them.

The questions asked by defendant's counsel of state's witnesses upon cross-examination which were objected to by the state all dealt with actions of the witness on the stand or investigating officers after the time of the criminal offense and were improper cross-examination. None of the questions asked were for the purpose of impeachment, but dealt entirely with irrelevant and immaterial matters and were objected to on that ground.

Defendant also endeavored to show previous unchaste conduct with another by the prosecuting witness. As this court stated in State v. Reid, 127 Mont. 552, 267 P.2d 986, 991: 'Where, as here, the prosecutrix was under the age of consent evidence of immoral or unchaste conduct with others than the accused is inadmissible either by proving general reputation for unchastity or by proof of specific acts of immoral conduct. State v. Richardson, 63 Mont. 322, 332, 207 P. 124; State v. Newman, 88 Mont. 558, 561, 294 P. 377; State v. Paddock, 86 Mont. 569, 284 P. 549.'

In this situation the court committed no error in sustaining the objections and denying the offers of proof made by the defendant.

The second error contended arose on the following set of facts: The defendant introduced character witnesses and asked them whether they knew the defendant's reputation for morality. They answered in the affirmative, and when asked whether it was good or bad they stated it was good. The state cross-examined these character witnesses by asking them whether or not they had heard any 'reports' or 'rumors' that the defendant had attempted to assault a woman, does not support his minor child, and had shot at his wife with a pistol. The defendant objected to the cross-examination and contends here that the court was in error in overruling his objections on three grounds: (1) That the questions embodied a statement of fact which could not be proved by independent evidence; (2) that the questions were not confined to the particular trait of character in question; (3) there was no testimony that these rumors or any of these statements or any of these facts were within the community in which defendant lived.

In support of the first proposition defendant cites two Montana cases, State v. Jones, 48 Mont. 505, 139 P. 441, and State v. Popa, 56 Mont. 587, 185 P. 1114, seemingly for the proposition that particular acts of misconduct may never be used on cross-examination to impeach the character witnesses.

Defendant especially relies on language in State v. Jones, supra, beginning at page 515 of 48 Mont., at page 445 of 139 P. While a superficial study of that case would appear to support defendant's contention, we feel a thorough analysis would not, for the case is clearly distinguishable from the present one. In that case the following question was propounded to the character witness: 'Did you ever hear about the episode at the Castle when he went up there to beat up a woman?' This court in holding that the question was improper said: 'The question as put by counsel assumed as a fact that the defendant did go to the Castle for the purpose stated. Though the statement was in the form of an interrogatory, it was as objectionable as if it had been stated in the form of a declaratory sentence, and therefore was obnoxious to the rule against proof of particular facts. * * * It is never proper for counsel to so frame questions as to assume the existence of facts which are not admissible if offered as independent evidence.' Emphasis supplied.

It will be noted that in that case, the court made much of the manner in which the question was framed. A cursory examination shows that the statement was framed in terms of ultimate fact, thus the county attorney had assumed the existence of facts which were not admissible if offered as independent evidence.

However the Jones case also stands for the rule that had the question been framed in proper language then there would have been no impropriety in asking it. The following language in 48 Mont. at page 516, 139 P. at page 445 supports this thesis: 'The rule is well settled that, when a defendant in a criminal case calls witnesses to testify that he possesses such a general reputation in the community in which he resides as tends to rebut the notion that he is guilty of the crime with which he is charged, these witnesses may be questioned on cross-examination as to their knowledge of disparaging rumors or common reports affecting his reputation. As the favorable testimony tends to sustain the presumption of innocence which the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact, viz., whether his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements. If therefore it can be shown that there are or have been rumors or reports affecting the reputation, to this extent the statements of the witnesses are shown to be without foundation in fact and therefore not entitled to credit. * * * The purpose of the inquiry is to ascertain what the witness had heard to the disparagement of the reputation, and not his knowledge of particular acts of misconduct.' Emphasis supplied.

It will be noted that this court stressed the form of the question, that is, it should be framed in terms of 'reports' or 'urmors'. The reason for this is clearly set out in the underlined portion of State v. Jones, supra. The purpose of cross- examination on reports or rumors is to test the credibility of the character witness, not establish his knowledge of the facts. The character witness says he knows the reputation of the defendant. To test his knowledge the state may cross-examine him on whether he has heard certain rumors or reports of certain acts or conduct of the defendant. Naturally the questions must be based on some degree of specificity as to the nature of the conduct or act and when it occurred or else it becomes too vague to answer intelligently. The rule was stated by Parke, B., in Reg. v. Wood & Parker, 5 Jur. 225 (Eng.): 'The question is not whether the prisoner was guilty of that robbery [concerning which his character witness was cross-examined], but whether he was suspected of having been implicated in it. A man's character is made up of a number of small...