State v. Rogers

• Decision Date: 28 December 1929
• Docket Number: 5437
• Citation: 48 Idaho 567,283 P. 44
• Parties: STATE, Respondent, v. IRA ROGERS, Appellant
• Court: Idaho Supreme Court

283 P. 44

48 Idaho 567

STATE, Respondent, v. IRA ROGERS, Appellant

No. 5437

Supreme Court of Idaho

December 28, 1929

CRIMINAL LAW-RAPE-TIME-INFORMATION - PROOF-EVIDENCE-VENEREAL DISEASE OF PROSECUTRIX.

1. Time is not of essence of rape, and, notwithstanding date alleged in information, any proof that crime charged was committed within three years prior to filing of information was admissible, so that instruction that precise time at which offense was committed was immaterial, so long as it was committed within reasonable time as stated in information was proper.

2. In prosecution for rape, where evidence showed prosecutrix was suffering from venereal infection and that defendant after arrest was suffering from gonorrhea, evidence that prosecuting witness had told witness she had stayed at hotel in room with certain male person of potent age during night held properly excluded, since it was hearsay, and would not have established gonorrhea in prosecutrix's reputed bedmate.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Bert A. Reed, Judge.

Defendant was convicted of the crime of statutory rape. Affirmed.

Affirmed.

Myrvin Davis, for Appellant.

While there are many cases which allow a variance between the allegation of the indictment and the proof, we can find but two which have allowed a variance between the proof and the verdict, and these we believe are easily distinguished. We cite the following cases as upholding the theory that but slight variance can be allowed between the allegation and the proof, and that no variance can be allowed between the proof and the verdict of the jury: State v. Colombo, 1 Boyce (Del.), 96, 75 A. 616; State v. Hardin, 63 Ore 305, 127 P. 789; People v. Horn, 25 Cal.App. 583 144 P. 641; Taylor v. State, 14 Okla. Cr. 400, 171 P. 739; People v. Gemino, 38 Cal.App. 100, 175 P. 489.

It having been shown that the prosecutrix was afflicted with gonorrhea, and evidence having been given tending to show that the defendant was likewise afflicted, the defendant should be allowed to show that the prosecutrix had opportunity of contracting the disease from some person other than himself. The proof of the disease gives rise to an inference in the minds of the jury which is a dangerous one and which the defendant has a right to dispel. (State v. Height, 117 Iowa 650, 94 Am. St. 323, 91 N.W. 935, 59 L. R. A. 437; Nugent v. State, 18 Ala. 521.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

Under an information charging that the crime of rape was committed on or about the twenty-second day of December, 1928 (prior to the date of filing the information), it was proper for the jury to reconcile evidence that the crime might have been committed some three weeks prior, time not being the essence of the crime of rape. (People v. Horn, 25 Cal.App. 583, 144 P. 641; State v. Hardin, 63 Ore. 305, 127 P. 789; Taylor v. State, 14 Okla. Cr. 400, 171 P. 739; People v. Gemino, 38 Cal.App. 100, 175 P. 489; People v. Reynolds, 48 Cal.App. 688, 192 P. 343.)

On a trial for rape when the female was under the age of consent at the time of the commission of the offense, evidence that she had previously had sexual intercourse with other men is not admissible. (State v. Hammock, 18 Idaho 424, 110 P. 169; State v. Pettit, 33 Idaho 326, 193 P. 1015; State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Dowell, 47 Idaho 457, 276 P. 39; State v. Alvord, 47 Idaho 162, 272 P. 1010.)

T. BAILEY LEE, J. Budge, C. J., and Givens, Wm. E. Lee and Varian, JJ., concur.

OPINION

T. BAILEY LEE, J.

Defendant was accused of the crime of statutory rape perpetrated upon the body of the prosecutrix. Conviction was had and defendant has appealed from the judgment thereof.

He primarily charges that the trial court erred in refusing to give the following requested instruction:

"You are instructed that in this case there being but one charge and no evidence given of any other act than that charged to have occurred on December 22, 1928, and the state having chosen to rely upon that date, and having confined their proof to that date, that you must find the defendant guilty as of that date only, if you decide that he is guilty at all" and giving in lieu thereof Instruction No. 14, to wit: "You are instructed Gentlemen of the Jury, that under the law the precise time at which an offense of this kind was committed is immaterial so long as it is committed within a reasonable time as stated in the information; time is not a material part of this sort of a crime unless the statute of limitations would enter therein; I will instruct you that a period of at least three weeks or a month would be a reasonable time in conformity with the facts of this case."

The information charged the crime to have been committed on or about December 22, 1928. To that exact date, prosecutrix positively testified. The evidence introduced by the defense disclosed a possibility of the crime having been committed at some other date, but prior to the filing of the information. That the requested instruction was wrong, and the court's instruction right, admits of no controversy. Time is not of the essence of rape; and, notwithstanding the date alleged in the information, any...