State v. Puckett, 9496

• Decision Date: 04 May 1965
• Docket Number: No. 9496,9496
• Citation: 401 P.2d 784,88 Idaho 546
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jack L. PUCKETT, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 784

401 P.2d 784

88 Idaho 546

STATE of Idaho, Plaintiff-Respondent, v. Jack L. PUCKETT, Defendant-Appellant.

No. 9496.

Supreme Court of Idaho.

May 4, 1965.

J. Henry Felton, Lewiston, Idaho, for appellant.

Allan G. Shepard, Atty. Gen. and Thomas G. Nelson, Deputy Atty. Gen., Boise, Roy E. Mosman, Pros. Atty., Lewiston, for respondent.

McQUADE, Chief Justice.

On March 24, 1964, a verdict was returned against Jack Lee Puckett on the charge of rape. Judgment of conviction was entered on the 9th day of April, 1964, from which the defendant-appellant, Jack Lee Puckett, appeals. The information for the crime of rape was filed in accordance with I.C. § 18-6101:

'Rape defined.--Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances:

* * *

* * *

'4. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating narcotic, or anaesthetic substance administered by or with the privity of the accused.'

The alleged rape took place on November 17, 1963. That evening the prosecutrix was at a laundromat in Lewiston. Having put her laundry in a dryer, she went outside and sat in her car to drink a bottle of 'pop'. The prosecutrix established this time to be about 10:10 p. m. After sitting for nearly 30 minutes, she was approached by a man dressed in tan pants and a white undershirt, who asked her to accompany him, and upon her refusal forced the prosecutrix into his car at knife point. Driving to a nearby field, the man proceeded to have sexual intercourse with her. The prosecutrix was then returned to the laundromat.

There being no phone at her own home, the prosecutrix called the home of her stepmother. The stepmother went to the laundromat, picked her up, and returning to the former's residence, heard the story, and then, with the father of the prosecutrix, reported the incident to the police. The police were called at 11:30 p. m.

Upon talking to the prosecutrix, the police were taken to the place of the alleged rape, where pictures were taken of automobile tracks found in the soft soil. The ground was deemed to be too soft for the taking of plaster cast imprints.

A medical doctor examined the prosecutrix and found that penetration of the vaginal tract had occurred within the previous two to six hours. Testimony was introduced to establish the prosecutrix and her husband had not had sexual intercourse during the previous 48 hours.

The prosecutrix furnished a description of the automobile to the police as a 1950 or 1951 Oldsmobile, two-door, having a sun visor and with a side window partially missing and that opening covered by cardboard, the car being black in color.

Five days later, on November 22, 1963, an automobile was sighted and identified by the prosecutrix as the automobile driven by the perpetrator. A partial license number was acquired, being Idaho license N 12 2----. At this time the color was noted to be dark blue.

The same day Edward Lucas, with the Lewiston Police Department, went to the residence of Jack Lee Puckett and asked him to come to the police station. After this time an automobile was stopped, a 1951 Oldsmobile, Idaho license N 12 290, being driven by Darrell Puckett, brother of the appellant. The automobile was escorted to the police station, where pictures were taken of the exterior and the treads of the tires. Arrest of the defendant was made on the 28th day of November, shortly after midnight by Lt. Schwartzkopf and Officer Fannan. At the trial the prosecutrix identified the defendant as her assailant.

The pictures taken of the tracks found at the point of the alleged rape were admitted into evidence as State's Exhibits 12, 13, 14 and 15. Officer Fannan, who took the pictures, testified to their representations as imprints of a right front tire, left front tire, left rear tire and right rear tire, respectively. Fannan further testified that while the two front tires left clear impressions, the two rear tires were half worn, though possessing some tread.

State's photo Exhibits 8, 9, 10 and 11 were identified and admitted into evidence as the pictures showing the four tires on the Puckett automobile. State's Exhibits 10 and 11 represent the right rear and left rear tires, respectively, of the Puckett automobile and show no tread design. Edward Lucas testified that there was tread on each of the tires. There was no error by the trial court in admitting Exhibits 8, 9, 12 and 13, there being sufficient similarity to entitle them to consideration by the jury.

Appellant Jack Lee Puckett contends that he was in another place at the time the crime was committed. At trial it was shown that appellant and his wife had been hunting the day of the alleged rape and upon returning to Lewiston, the couple had stopped at the home of appellant's mother in Clarkston, Washington, leaving about 10:15 or 10:20 p. m. At that time appellant was dressed in hunting clothes. Appellant and his wife were together for the remainder of the night and both alleged that neither left during the period in question.

Six assignments of error are specified by the appellant.

Three of the six assignments are predicated upon failure of the trial court to submit certain instructions to the jury. The first assignment of error is the refusal to grant defendant's motion for an advisory verdict of acquittal based upon the insufficiency of the evidence and the failure of corroboration.

Advisory verdicts of acquittal are provided by statute, I.C. § 19-2123, as follows:

'Advisory instruction to acquit.--If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant. But the jury are not bound by the advice.'

In the case of State v. Powaukee, 78 Idaho 257, 261, 300 P.2d 488, 490 (1956), the court has said:

'* * * 'Where there is no evidence on which to base a verdict of guilty, it is still the right and duty of the trial court, upon proper motion, to direct an acquittal. * * * Where, however, the evidence is merely insufficient, the court must then advise the jury to acquit, which advice the jury is not bound to follow.''

See also State v. McCallum, 77 Idaho 489, 295 P.2d 259 (1956). Giving of the instruction authorized by this section is a matter of discretion with the trial court and its action in the premises is not reviewable by the Supreme Court. See State v. Haverly, 4 Idaho 484, 42 P. 506 (1895).

It was not error for the court to refuse to instruct the jury to acquit the defendant. State v. Stevens, 48 Idaho 335, 349, 282 P. 93 (1929); State v. West, 42 Idaho 214, 245 P. 85 (1926); State v. Chacon, 36 Idaho 148, 209 P. 889 (1922); State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R. 602 (1921); State v. Murphy, 29 Idaho 42, 156 P. 908 (1916); State v. Wright, 12 Idaho 212, 85 P. 493 (1906).

The third assignment of error is the refusal to give three requested instructions. The first of these is for a cautionary instruction.

'DEFENDANT'S REQUESTED INSTRUCTION NO. 1.

'A charge such as that made against the defendant in this case is one, which, generally speaking, is easily made, and once made, difficult to disprove even if the defendant is innocent. From the nature of a case such as this, the complaining witness and the defendant usually are the only witnesses. Therefore I charge you that the law requires that you examine the testimony of the prosecuting witness with caution.'

The appellant cites State v. Elsen, 68 Idaho 50, 187 P.2d 976 (1947). At page 57, 187 P.2d at page 980, the court stated that:

'* * * Such instructions state no rule of law, but simply embody the oft-repeated observation of Lord Hale to the effect that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent. It has been said that such an instruction invades the province of the jury, who are the sole judges of the facts and the weight to be given the evidence. [Citing cases.] We are inclined to agree with the reasoning of these cases, and believe that ordinarily cautionary instructions would add undue emphasis to the instructions on reasonable doubt and presumption of innocence which would have the practical effect of misleading the jury.

'It seems that in most jurisdictions where cautionary instructions are held proper, the defendant can be convicted upon the uncorroborated testimony of the prosecutrix alone. However, we recognize that there may be certain instances where the nature of the evidence may be such that cautionary instructions might not be inappropriate, and we therefore believe that the giving of such instructions, if request is made therefor, should rest within the sound discretion of the trial court.'

See also State v. Madrid, 74 Idaho 200, 259 P.2d 1044 (1953). Respecting the discretion of the trial court, the intelligence and province of the jury, we conclude that the refusal to grant the cautionary instruction was proper.

Two other instructions requested by the appellant and refused by the court were covered by the trial judge. The two instructions are:

'DEFENDANT'S REQUESTED INSTRUCTION NO. 2.

'You are instructed, that unless you find that the testimony of * * * [the prosecutrix] has been corroborated by substantial evidence of the crime charged, her evidence alone is insufficient to warrant a conviction of the defendant.'

'DEFENDANT'S REQUESTED INSTRUCTION NO. 3.

'You are instructed, that in this case, if the testimony of * * * [the prosecutrix] is not corroborated by other evidence as to what transcribed [sic], at the immediate time and place of the charged offense, it is insufficient upon which to found a conviction.'

The instructions given by the trial court covered the matter of corroboration:

'INSTRUCTION NO. 4.

'GENTLEMEN OF THE JURY: You...