State v. Peres

• Decision Date: 15 January 1903
• Citation: 71 P. 162,27 Mont. 358
• Parties: STATE v. PERES.
• Court: Montana Supreme Court

71 P. 162

27 Mont. 358

STATE v. PERES.

Supreme Court of Montana

January 15, 1903

Appeal from district court, Cascade county; J. B. Leslie, Judge.

Camile Peres was convicted of statutory rape, and appeals. Affirmed.

T. E Brady, for appellant.

Jas Donovan, Atty. Gen., for the State.

HOLLOWAY J.

The defendant, Camile Peres, was convicted of the crime of rape committed on the person of one Adrienne Baque, a female under the age of 16 years, and from the judgment and an order denying his motion for a new trial he appeals.

On the trial of the cause the prosecuting witness was permitted over the objection of the defendant, to testify to acts of intercourse between herself and the defendant prior to the act complained of and for which the defendant was then being tried. This is assigned as error. While there may be some slight conflict in the authorities on this point, confessedly the great weight of authority is in favor of the admissibility of this class of evidence; not to prove substantive offenses upon which conviction might be had, but in corroboration and explanation of the testimony concerning the commission of the act charged. People v. Jenness, 5 Mich. 305; Whart. Cr. Ev. (8th Ed.) § 35; People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880, 58 Am. Rep. 530; Mitchell v. People (Colo. Sup.) 52 P. 671. In State v. Robinson (Or.) 48 P. 357, in discussing the precise question under consideration, the court says: "It is next insisted that the court was in error in allowing the prosecution to give evidence tending to show more than one act of criminal intercourse between the defendant and the prosecutrix. The reason assigned for the objection to this testimony is that it violates the rule which prohibits evidence of a distinct crime unconnected with that alleged in the indictment to be given against the prisoner. As a general rule, the principle invoked is unquestioned, although there are in fact many exceptions, which it is unnecessary to point out at this time, as the authorities fully sustain the competency of the evidence offered and admitted in this case, not for the purpose of proving a different offense, but to show the relation and familiarity of the parties, and as corroborative of the prosecutrix's testimony concerning the particular act relied upon for a conviction. Strang v. People, 24 Mich. 6; People v. Abbott, 97 Mich. 484, 56 N.W. 862, 37 Am. St. Rep. 360; Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; Hardtke v. State, 67 Wis. 552, 30 N.W. 723; Taylor v. State, 22 Tex.App. 529, 3 S.W. 753; People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880, 58 Am. Rep. 530. It was for this purpose alone the evidence in question was admitted, as expressly stated at the trial court at the time, and as subsequently fully explained to the jury in the charge." In this connection it is urged that the court erred in giving instruction numbered 8, in which the jury was told that the evidence of prior acts of intercourse between the prosecutrix and defendant was admitted only for the purpose of corroborating her testimony regarding the commission of the act charged. On the argument of this cause counsel for defendant admits that, if the evidence was properly admitted, the instruction was proper, and, having disposed of the former question above, its determination likewise disposes of this.

It is next urged that the district court erred in permitting the prosecutrix to testify that on Wednesday after the Friday on which the alleged crime was committed she told her teacher Miss Sutton, the fact that she had been raped, and repeated this to all of the teachers on the Monday following; the contention being that a considerable time had elapsed, with good opportunity for her to have told of the occurrence; and that her statement was not voluntary, in that it was elicited by her teacher by repeated questioning. Considering the last phase of this question first, was the statement of the prosecutrix to her teacher in fact voluntary? The testimony tends to show that the alleged crime was committed on Friday; that on Monday she went to school, was nervous, and cried, and, when asked by her teacher the cause of her trouble, evaded the question; that on Tuesday much the same thing occurred, and she was excused from reciting in her classes. On Wednesday, when her teacher found her crying, and urged her to tell the cause of her trouble, she did so. Under the circumstances we cannot say that the statement was involuntarily made, and the objection on that ground is not tenable. By this, however, we are not to be understood as saying that the testimony would not have been admissible unless the statement was voluntarily made. This was not in the nature of a confession or admission as those terms are generally used and understood in the decided cases or text-books, and the rule governing there has no application here. The evidence was properly admitted, and the question as to whether the statement was made under coercion, or otherwise than voluntarily, was one which affects the weight, rather than the admissibility, of the evidence, and was a matter properly for the jury's consideration. Under the information in this case, which charged that the prosecutrix was under the age of consent, viz., under the age of 16 years, it will readily be observed that the rule, which has often been promulgated, with reference to cases of rape where force and resistance thereto were the gist of the offense, and...