State v. Rassmussen

Decision Date27 January 1969
Docket NumberNo. 9966,9966
PartiesThe STATE of Idaho, Plaintiff-Respondent, v. James Robert RASSMUSSEN, Defendant-Appellant.
CourtIdaho Supreme Court

Henry F. Reed, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Boise, for appellee.

McFADDEN, Justice.

James Robert Rassmussen, the defendant-appellant, was found guilty by a jury of the crime of procurement, alleged by the information to have been committed in Boise, Idaho, on or about January 14, 1966. The trial court, on the basis of the jury verdict, entered judgment that the defendant was guilty of the crime charged and that he be punished by imprisonment in the state penitentiary for a term of two years. This prison term, however, was commuted and the defendant ordered imprisoned in the county jail for sixty days. The defendant appeals from this judgment.

The principal issue presented by this appeal is whether a conviction for the crime of procurement, I.C. § 18-5602, 1 can be sustained upon the uncorroborated testimony of the prosecutrix, or whether it is necessary that there be evidence to corroborate her testimony. This issue is one of first impression before this court.

The record upon which the judgment of conviction is based reflects the following: The prosecutrix was employed as a cocktail waitress in a nightclub in Boise; on the evening of January 14, 1966, the prosecutrix was at work when the defendant approached her, put his arm around her and stated to her:

'* * * 'Gee, it is nice to have you back in town, don't leave town again because I am going to kidnap you and take you with me,' * * * 'I have got a big deal for you, I have a new whorehouse in Nevada. I want you to come and help me run it, and it will be about $500 a week.''

The prosecutrix testified that the defendant had made similar statements to her before this time, and that although no money changed hands between them and no particular place was mentioned she did not think he was joking. She also testified that she was not engaged in prostitution and that she was not interested in the defendant's offer.

Another woman testified that the defendant had offered her a job in Nevada, but she was unable to state whether the defendant was referring to prostitution. Other witnesses called by the defendant testified to the effect that although the defendant was in the particular nightclub on the evening the alleged event took place, he was absent therefrom at the time stated by the prosecutrix.

On appeal the defendant contends that his conviction cannot be sustained on the basis of the uncorroborated testimony of the prosecutrix.

Although there are no Idaho cases directly in point, appellant, by way of analogy, points to several Idaho decisions requiring corroboration of the testimony of a prosecutrix in rape cases and in cases involving lewd and lascivious conduct with minors. He asserts that the rule requiring corroboration in that type of case should be applied here. The rule requiring corroboration of the prosecutrix's testimony in rape cases was first stated by this court in State v. Anderson, 6 Idaho 706, 59 P. 180 (1899):

'Undoubtedly the rule is that a defendant may be convicted of the crime of rape upon the uncorroborated testimony of the prosecutrix; but this is only so when the character of the prosecutrix for chastity, as well as for truth, is unimpeached, and where the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix.' 6 Idaho at 709, 710, 59 P. at 181.

See also State v. Baker, 6 Idaho 496, 56 P. 81 (1899); State v. Short, 39 Idaho 446, 228 P. 274 (1924); State v. Bowker, 40 Idaho 74, 231 P. 706 (1924); State v. Hines, 43 Idaho 713, 254 P. 217 (1927). This same rule has been extended to prosecutions for lewd and lascivious conduct. State v. Madrid, 74 Idaho 200, 259 P.2d 1044 (1953). Appellant would have us extend it further to prosecutions for procurement under I.C. § 18-5602. This we decline to do.

Wigmore states that

'At common law, the testimony of the prosecutrix or injured person, in the trial of all offenses against the chastity of women, was alone sufficient evidence to support a conviction; neither a second witness nor corroborating circumstances were necessary.' 7 Wigmore on Evidence, § 2061, p. 342 (3d ed. 1940). (Empahsis added.)

The contrary rule requiring corroboration is almost exclusively a creation of statute. See 7 Wigmore on Evidence, § 2601, fn 2, pp. 346-354 (3d ed. 1940), for a collection of these statutes. Referring to this statutory rule requiring corroboration for various sex crimes, Wigmore states:

'Furthermore, a rule of law requiring corroboration has probably little actual influence upon the jurors' minds over and above that ordinary caution and suspicion which would naturally suggest itself for such charges; and the rule thus tends to become in practice merely a means of securing from the trial judge the utterance of a form of words which may chance to be erroneous and to lay the foundation for a new trial. Finally, the purpose of the rule is already completely attained by the judge's power to set aside a verdict upon insufficient evidence, and under this power verdicts are constantly set aside, in jurisdictions having no statutory rule, upon the same evidence which in other jurisdictions would be insufficient under the statutory rule requiring corroboration.

'The fact is that, in light of modern psychology, this technical rule of corroboration seems but a crude and childish measure, if it be relied upon as an adequate means for determining that credibility of the complaining witness in such charges. * * * This statutory rule is unfortunate in that it tends to produce reliance upon a rule of thumb.' 7 Wigmore on Evidence, § 2061, pp. 354-355 (3d ed. 1940).

Wigmore's reasoning is to us persuasive and has been followed in the vast majority of those jurisdictions not having a specific statute requiring corroboration. Indeed, it accurately states what has long been the prevailing common law rule.

Appellant has cited no authority from this jurisdiction, or from any other jurisdiction, holding that corroboration is required to sustain a conviction under statutes similar to I.C. § 18-5602. Although the State has cited some authority from which it can be inferred that corroboration is not essential to uphold a conviction for procurement or somewhat similar offenses (see for instance People v. Moseley, 240 Cal.App.2d 859, 50 Cal.Rptr. 67 (1966); Mazer v. State, 231 Md. 40, 188 A.2d 552 (1963); and Newsome v. State, 172 Tex.Cr.R. 272, 356 S.W.2d 313 (1962)), there is a wealth of authority explicitly following the common law rule as stated by Wigmore.

In State v. Fleckenstein, 60 N.J.Super. 399, 159 A.2d 411 (1960), the court sustained a conviction for lewdness and carnal indecency, pointing out that:

'The rule at common law and in most jurisdictions today is that in the absence of statute, a conviction for a morals or sex offense may be sustained on the uncorroborated testimony of the victim. 7 Wigmore on Evidence, § 2061 p. 345 (3rd Ed.1940); Annotation 60 A.L.R. 1124, 1125 (1929). New Jersey statutes generally do not require corroboration for a conviction for a morals or sex offense. In the exceptional cases where the Legislature intended to impose the requirement of corroboration for the conviction of a crime, it did so expressly * * *.' 159 A.2d 411, at 414.

A great many other cases in other states have upheld convictions for various sex crimes ranging from rape to indecent liberties, explicitly holding that in the absence of a specific statute, corroboration of the victim's testimony is not required: Rogers v. State, 237 Ark. 437, 373 S.W.2d 705 (1963) (rape); People v. Sharp, 162 Cal.App.2d 833, 328 P.2d 535 (1958) (rape); State v. Field, 157 Me. 71, 170 A.2d 167 (1961) (rape); Application of Bennett, 77 Nev. 429, 366 P.2d 343 (1961) (rape); Boyd v. State, 189 Miss. 609, 198 So. 561 (1940) (rape); Scott v. State, 349 P.2d 47 (Okl.Cr.App.1960) (rape); Wright v. State, 364 S.W.2d 384 (Tex.Cr.App.1963) (rape); Day v. Commonwealth, 187 Va. 457, 47 S.E.2d 362 (1948) (rape); State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944) (rape); Hummel v. State, 210 Ark. 471, 196 S.W.2d 594 (1946) (sodomy); Hans v. State, 147 Neb. 67, 22 N.W.2d 385 (1946) (abortion); Commonwealth v. Allabaugh, 162 Pa.Super. 490, 58 A.2d 184 (1948) (sodomy); People v. Carlson, 73 Cal.App.2d 933, 167 P.2d 812 (1946) (lewd and lascivious conduct); State v. Trujillo, 60 N.M. 277, 291 P.2d 315 (1955) (indecent handling); State v. McCall, 245 Iowa 991, 63 N.W.2d 874 (1954) (incest); State v. Wood, 235 N.C. 636, 70 S.E.2d 665 (1952) (incest). See also the dissenting opinion of Justices Givens and Taylor in State v. Madrid, 74 Idaho 200 at 210, 259 P.2d 1044, at 1050 wherein they state:

'It is more consonant with and in furtherance of this legislative intent to apply, as to corroboration of the victim who is not an accomplice, the common law rule which in the absence of a statute, was that the testimony of the victim, if not contradictory or incredible or inherently improbable, and not inconsistent with the admitted or uncontradicted facts of the case, and if the victim's reputation for truth and veracity is not impeached, is sufficient to sustain a conviction and need not be corroborated.'

Idaho has no statute requiring corroboration in prosecutions brought under I.C. § 18-5602. I.C. § 19-2115 provides that:

'Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing, or taking away an unmarried female of previous chaste character, under the age of eighteen years, for the purpose of prostitution, or aiding or assisting therein, the defendant can not be convicted upon the testimony of the women upon or with whom the offense was committed, unless she is corroborated...

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