State v. Richardson
| Decision Date | 08 May 1922 |
| Docket Number | 4991. |
| Citation | 207 P. 124,63 Mont. 322 |
| Parties | STATE v. RICHARDSON. |
| Court | Montana Supreme Court |
Commissioners' Opinion.
Appeal from District Court, Flathead County; C. W. Pomeroy, Judge.
Joseph W. Richardson was convicted of rape, and he appeals. Affirmed.
Brennen & Kendall, of Kalispell, for appellant.
W. D Rankin, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for the State.
The information in this case charges the defendant and appellant with rape of one Mary Richardson, a girl of the age of 14 years at the time of the commission of the offense, June 25 1920. The case came on for trial in the district court on the 7th day of December, 1920; the jury returned a verdict of guilty; and from the judgment of conviction and the refusal of the district court to grant a new trial, the defendant appeals.
The assignment of error is: That the court erred in overruling defendant's motion for a new trial for the following reasons: First, that the verdict is contrary to the law and the evidence; and, second, that the court erred in decisions of questions of law arising during the progress of the trial. We will consider these assignments in the order stated.
The appellant contends that the testimony is insufficient to support the verdict rendered by the jury, and that the judgment should be reversed for that reason.
It appears that, from the evidence in the case, defendant and his wife adopted the prosecutrix, Mary Richardson, in February 1916, while they were living in Saskatchewan, Canada. Thereafter they moved to the state of Minnesota, and about January 1, 1920, Mrs. Richardson left for California, where she remained for about seven months. Thereafter defendant and Mary left Minnesota for Texas, where they remained a short time, arriving in Kalispell, Mont., in the month of May, 1920.
The prosecutrix testified to many acts of intercourse between herself and the defendant, commencing in the year 1916, the last act being performed on the 25th day of June, 1920, the date alleged in the information; that many times he took her to hotels, where they occupied the same room and the same bed. Defendant admits that they occupied the same room at various times, but denies that they occupied the same bed. A further detail of the evidence in this case would not serve any useful purpose. It is sufficient to say that after a careful examination of all of the evidence in the case we are of the opinion that it warrants the verdict returned by the jury.
The uncorroborated evidence of the prosecutrix is sufficient to sustain the conviction. State v. Peres, 27 Mont. 358, 71 P. 162; State v. Vinn, 50 Mont. 27, 144 P. 773.
The solution of the conflict in the evidence is in the exclusive province of the jury. State v. Gaimos, 53 Mont. 118, 162 P. 596.
The story told by the prosecutrix is not unreasonable or improbable. There is corroboration of the prosecutrix in the record. While they were living at Kalispell, one evening the defendant asked the prosecutrix to sleep with him, and he was overheard by several young girls who were there at the time; defendant not knowing they were present.
During the course of the examination of the prosecutrix, she was asked by the counsel for the defendant whether she had not had intercourse with persons other than the defendant, to which she answered, "No." She was then asked whether she had not told Mrs. Richardson about having intercourse with a boy by the name of Bordson and a boy by the name of Cunningham, to which she answered, "No." An objection was then made to this cross-examination, the court stating:
"If the defense has no evidence of these acts other than the statements of the complaining witness, that line of questioning will be excluded, and that line of evidence ruled incompetent."
The defendant stated he had no other evidence except the statements of the prosecuting witness. The offer was then made to ask the prosecutrix whether she did not tell Mr. and Mrs. Richardson, during the month of March, 1916, that she had intercourse with a man by the name of Jones. Objection was made to the question and sustained.
Thereafter a doctor testified for the state that she had examined the prosecutrix subsequent to the alleged offense set forth in the information, and prior to the trial; that she had found the hymen of the prosecutrix absent and her parts larger than would be expected in a girl of her years. The defendant, after the doctor had testified, made an offer to ask the prosecutrix on cross-examination if she did not tell to Mr. and Mrs. Richardson, during the year 1916, that she had intercourse with one Cunningham, and if she did not tell Mrs. Richardson the same story concerning one Jones and one Bordson. Objection was made by the state to the questions, and the objection sustained. The defendant thereafter offered to show by Mrs. Richardson, the wife of the defendant, that the prosecutrix had told her during the year 1916 that she had had intercourse with Cunningham and Bordson. Objection was made and sustained to these questions.
It is the contention of the defendant that error was committed by the district court because of the refusal to allow the defendant to ask these questions, and that, inasmuch as the doctor testified to the physical condition of the prosecutrix, he should be allowed to show that she had had intercourse with other persons, and, if possible, break the force of the necessary inference cast against the defendant by the testimony of the physician, citing the case of State v. Apley, decided by the Supreme Court of North Dakota, 25 N.D. 298, 141 N.W. 740, 48 L. R. A. (N. S.) 269; and that, since defendant could ask prosecutrix as to prior acts of sexual intercourse with others, and the prosecutrix having testified on cross-examination that she did not have intercourse with persons other than defendant, he (defendant) should have been allowed to impeach the girl by asking Mrs. Richardson if she was not told by prosecutrix of sexual acts with others. In other words, the defendant contends that it is proper for defendant to ask prosecutrix as to other acts to rebut the presumption created against defendant by the testimony of the physician, and therefore impeachment of her denial should be allowed.
The real question thus raised by defendant is whether he should have been allowed to impeach prosecutrix by the testimony of Mrs. Richardson. The testimony of the physician was given for a limited purpose. The state informed the court:
Defendant alleges the court failed to instruct the jury concerning the purpose of the physician's testimony, but if such instruction was desired by the defendant, he should have offered such an instruction, and he cannot now complain that such an instruction was not given. Section 11969, R. C. M. 1921; State v. McCarthy, 36 Mont. 226, 92 P. 521; State v. Francis, 58 Mont. 659, 194 P. 304. In the latter case, the court said:
The evidence of the physician having been given for a specific purpose, as shown by the statement of counsel for the state, the jury must have understood what its purpose was, and considered it only for the purposes for which it was offered. State v. Francis, supra.
When the prosecutrix was examined by counsel for the state, no questions were asked about acts of sexual intercourse with persons other than defendant, and therefore, when defendant examined her about such acts and asked her as to her conduct with other persons, he made her his own witness, and was bound by her answers with reference to those matters not touched upon on the direct examination. Section 10665, R. C. M. 1921; State v. Smith, 57 Mont. 349, 188 P. 644; Mautner v. Brody (Sup.) 120 N.Y.S. 734; Faulkner v. Rondoni, 104 Cal. 140, 37 P. 883.
The error alleged by defendant is the failure of the court to allow the testimony of the girl brought out on cross-examination to be impeached by the testimony of Mrs. Richardson. The defendant was attempting to impeach the prosecutrix as to matters not touched upon or brought out on the direct examination. This cannot be done. Modern Law of Evidence, § 3756. In Mautner v. Brody, supra, the court held that where a witness for defendant, on cross-examination, is asked by plaintiff about a matter not touched upon in the direct examination, he becomes plaintiff's witness as to the evidence he gives in response to the question, and he cannot be contradicted by the introduction by plaintiff of previous inconsistent statements. The same rule is upheld in Faulkner v. Rondoni, supra.
In Bullard v. Smith, 28 Mont. 387, 72 P. 761, the court said:
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