State v. Nicks, s. 9894
| Decision Date | 26 November 1958 |
| Docket Number | 9723,Nos. 9894,s. 9894 |
| Citation | 134 Mont. 341,77 A.L.R.2d 836,332 P.2d 904 |
| Parties | , 77 A.L.R.2d 836 The STATE of Montana, Plaintiff and Respondent, v. William NICKS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Hansen, Culver & Jones, Baker, Al Hansen and Clayton Jones, argued orally, for appellant.
Forrest H. Anderson, Atty. Gen., Robert J. Emmons, Asst. Atty. Gen., Gene Huntley, County Atty., Baker, Gene Huntley, County Atty., and Robert J. Emmons, Asst. County Atty., argued orally, for respondent.
Defendant was convicted of the crime denounced by section 94-4106, R.C.M.1947, of committing lewd and lascivious acts upon the person of a minor child below the age of sixteen years, alleged to have been committed on or about the 19th day of March 1955. His motion for a new trial was denied and he has appealed from the judgment of conviction. At the trial and over defendant's objection as being too remote in point of time, the State was permitted to show similar acts to those charged here as having been committed on August 4, 1951, and in June 1951 in the State of California. This is now assigned as error.
Appellant concedes as he must that evidence of other sex acts between the same parties is admissible. His position is that the question of the remoteness of time is always one that the court must determine and generally speaking whether similar acts are sufficiently related in point of time is a discretionary matter for the trial judge. However it is not an uncontrolled discretion and if this court regards the matter too remote it should have no hesitancy in ruling that there has been an abuse of discretion.
The State relies upon the case of State v. Peres, 27 Mont. 358, 71 P. 162, as sustaining the right to introduce such evidence covering a period of three years prior to the time of the act as charged. Examination of the opinion in that case does not indicate that this point was considered by the court. The court did rule that evidence of prior acts was admissible, but it does not appear that any point was raised as to the evidence being too remote in point of time.
The State also relies upon the cases of State v. Vinn, 50 Mont. 27, 144 P. 773, and State v. Harris, 51 Mont. 496, 154 P. 198. Those cases did not treat of the question that we are considering here. They simply ruled that evidence of similar acts is admissible, but the court did not give consideration to the question of the remoteness of time between the prior acts and the time relied on in the information.
The question before us here was involved in State v. Paddock, 86 Mont. 569, 284 P 549, 551. There the acts complained of however were committed about three months before the act charged in the information. The court quoted from 1 Wigmore on Evidence, Sec. 399 (2d ed.), as follows: "The limits of time over which the evidence may range must depend largely on the circumstances of each case, and should be left to the discretion of the trial court."
The case of People v. Turner, 260 Ill. 84, 102 N.E. 1036, is relied upon by the State and in that case evidence covering a period of four and one-half years before the time of the alleged offense was permitted to be introduced. The only objection made to such evidence as shown from the court's opinion is that the evidence related to a time beyond the three-year period of the statute of limitations and for that reason should have been excluded. The court properly ruled that the period of limitations had nothing to do with the case. The court did not however consider the question as to whether the evidence was too remote in point of time otherwise. That issue apparently was not tendered by the objection made, but if so and if the case be considered as holding that acts committed four and one-half years before the time charged in the information is not too remote, we decline to follow it.
We are more impressed with the ruling of the court in the case of State v. Moubray, 139 W.Va. 535, 81 S.E.2d 117, 122. That case was one involving an incest charge, and the question presented was whether evidence of a similar act committed three years before the act charged in the information...
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State v. Abel, 13498
...448 P.2d 175, 179 (N.M.App.1968). See Comment, Other Crimes Evidence in Louisiana, 33 La.L.Rev. 614, 619 n. 31 (1973); Annot., 77 A.L.R.2d 836, 859 (1961) and Later Case Service. This rule guards against two possible sources of error in the fact-finding process. The first is the possibility......
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State v. Rainey
...see also id. at 871 (holding that evidence of assault on another victim three years earlier was too remote); State v. Nicks , 134 Mont. 341, 332 P.2d 904, 904, 906 (1958) (holding that similar crimes in another state four years earlier were too remote); State v. Moubray , 139 W.Va. 535, 81 ......
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State v. Rainey, 2014-348-M.P.
...added); see also id. at 871 (holding that evidence of assault on another victim three years earlier was too remote); State v. Nicks, 332 P.2d 904, 904, 906 (Mont. 1958) (holding that similar crimes in another state four years earlier were too remote); State v. Moubray, 81 S.E.2d 117, 122 (W......
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State v. Just
... ... While the act of three years before is close to the limit as being too remote for probative value, see State v. Nicks (1958), 134 Mont. 341, 343, 332 P.2d 904, 905, when placed in the total sequence of events, it clearly forms an integral part. In any event, we have ... ...