State v. Sauter, 9012

• Decision Date: 07 June 1951
• Docket Number: No. 9012,9012
• Citation: 232 P.2d 731,125 Mont. 109
• Parties: STATE v. SAUTER et al.
• Court: Montana Supreme Court

Page 731

232 P.2d 731

125 Mont. 109

STATE v. SAUTER et al.

No. 9012.

Supreme Court of Montana.

June 7, 1951.

Arthur R. Meyer and Wiggenhorn & Hutton, all of Billings, for appellant.

Arnold H. Olsen, Atty. Gen., Louis E. Poppler, Asst. Atty. Gen., Charles B. Sande, County Atty., Billings, for respondent.

FREEBOURN, Justice.

John Sauter, defendant and appellant, with George Schneider, was charged by information with the crime of rape, 'by the use of force and violence, and threats of violence and great and immediate bodily harm,' upon a female of the age of 22 years.

Sauter, tried separately, was convicted and sentenced to serve 25 years in the state prison. From this conviction he appeals.

Over objection, the prosecution was permitted to introduce in evidence statements of defendant tending to show he had committed rape upon another woman sometime prior to the commission of the act for which he was on trial.

Such statements and evidence of the previous rape were inadmissible in this case.

The general rule is found in 44 Am.Jur., Rape, sec. 79, p. 948, where it is said: 'The courts universally refuse to admit evidence of the commission of other and distinct crimes where such evidence is not otherwise relevant, and in the application of this rule it is well settled on a prosecution for rape that evidence of another rape or other sex crime committed at a different time and on or against another person, and having no connection with the crime charged, is not admissible. * * * The prosecution may not show that the defendant has had sexual intercourse with other young females, or that he has committed other sex crimes and immoral acts.'

In 22 C.J.S., Criminal Law, Sec. 682, pages 1084 and 1087, it is said: 'The general rule, which is subject to exceptions stated in Secs. 683-690, infra, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible, and such evidence of an independent crime is inadmissible for the reason, among others, that it ordinarily does not tend to establish the commission by accused of the offense charged, that accused must be tried for one offense at a time, and that, in accordance with the more extensive general rule, which applies to all cases, civil and criminal, the evidence must be confined to the point in issue.'

The same general rule extends to a confession or admission by accused of the commission of another crime. 22 C.J.S., Criminal Law, Sec. 682, page 1088. See also: Gunter v. State, 180 Miss. 769, 178 So. 472; Baygents v. State, 144 Miss. 442, 110 So. 114; Bartz v. State, 229 Wis. 522, 282 N.W. 562. It also applies to statutory rape. See 167 A.L.R., p. 588, and authorities cited.

In People v. Whalen, 70 Cal.App.2d 142, 160 P.2d 560, 562, the California court said: 'The authorities are unanimous in holding that a defendant's right to a fair trial in this sort of case is violated by the receipt of evidence of the commission of acts similar to those charged, with a person or persons other than the prosecutrix. People v. Asavis, 1937, 22 Cal.App.2d 492, 71 P.2d 307, and cases cited.'

In State v. Peterson, 102 Mont. 495, 59 P.2d 61, the evidence of other and similar acts were received to show corroboration, and confined to acts with the prosecutrix under identical circumstances. See also: State v. Paddock, 86 Mont. 569, 284 P. 549; State v. Gaimos, 53 Mont. 118, 162 P. 596.

There is nothing in the case before us which takes it out of the general rule herein announced and brings it within any exception thereto.

Defendant admitted having intercourse with the prosecutrix but contended it was not rape. Whether it was or was not was a question of fact for the jury. Neither defendant's identity nor intent was in question. The previous sexual act occurred with a woman, not the prosecutrix, and at another time and place than that charged in the information. Evidence thereof could not be res gestae. The evidence of the prior act had no connection with the act for which defendant was on trial. It did not tend to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged. State v. Gaimos, supra.

Sexual acts, whether rape or no rape, originating in barroom pickups, powered by the urge, and consummated in automobiles, are entirely too common in this day and age to have much evidentiary value in showing a systematic scheme or plan.

In Walker v. State, 103 Tex.Cr.R. 555, 281 S.W. 1070, a forcible rape case, it appears 'that the appellant came to the boarding house of the prosecutrix and represented to her that he desired to employ her to nurse his baby and act as companion for his wife, and, believing said representation, she went with him on the street car to the end of the line, and then walked with the appellant through a woods until they had reached a rather secluded spot, when appellant by drawing a pistol on her, forced her to have intercourse with him. The prosecutrix testified that appellant represented to her that he lived in the direction in which they were going, and that she thought he was taking her to his home for the purpose of giving her employment '* * * a negro woman was permitted to testify that appellant came to her house on Gable street, in 1923, and told her he wanted somebody to work for him, and she consented to take the job, and went with the defendant to Independence Heights, at his instance and direction, and they got on a street car and later got out and went down the railroad track into the woods somewhere, and when they got in the woods, the appellant held a gun on the witness and forced her to have intercourse with him. Similar testimony was given by various other witnesses, as to assaults made on them by appellant. The learned trial court told the jury in his charge that if they believed the state had connected the defendant with collateral assaults before they could consider same, they must believe that said assaults had been committed by defendant, and if they found same had been so committed, then not to consider them for any purpose except to illustrate system, motive, and intent of the defendant, if said collateral assaults did illustrate system, motive, and intent in committing the offense for which the defendant was on trial. * * *

'Under the facts in this case, the testimony of the collateral transactions above mentioned was clearly inadmissible. Mr. Branch has correctly stated the rule as follows:

"The fact that two or more distinct crimes may have been committed the same way does not show 'system."'

The evidence of the alleged previous acts by defendant and not involving the prosecutrix in any way could only tend to show his bad character and disposition. Since he had introduced no evidence of his good reputation such evidence so introduced by the state was clearly inadmissible.

R.C.M.1947, section 93-1901-11, provides: 'A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony.'

This court said in State v. Popa, 56 Mont. 587, 185 P. 1114, 1115: 'Evidence given either in support or impeachment of the character of one accused of crime must, as a rule, be confined to general reputation, and cannot be extended to particular acts. State v. Shadwell, 22 Mont. 559, 57 P. 281.'

In State v. Jones, 48 Mont. 505, 139 P. 441, 445, we said: 'Extrinsic evidence of particular wrongful acts is therefore not admissible, because it violates the rule against proof of particular facts to establish reputation, declared by the statute. Rev.Codes, Sec. 8024 [Rev.Codes 1907, now R.C.M.1947, sec. 93-1901-11, supra]; Wigmore on Evidence, Sec. 988; Underhill on Criminal Evidence, Sec. 82; 1 McClain on Criminal Law, Sec. 307.'

In Williams v. State, 68 Okl.Cr. 348, 98 P.2d 937, 940, a rape case, the Oklahoma court said, quoting from the leading case of State v. Lapage, 57 N.H. 245, 24 Am.Rep. 69: "To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or, it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. * * * Proof of the first crime would show that the respondent was a very bad man--would perhaps show a tendency or disposition to commit that particular crime; but it would go no further, and in fact would amount to little more than an attack upon the respondent's character, which is inadmissible unless he puts it in issue, and an attack upon his character by showing particular acts, which is also inadmissible. * * * I mention this case to illustrate the necessity of extreme caution not to admit such testimony unless there can be seen some distinct logical connection, such as the law requires, between the fact proposed to be proved and the fact in issue."

In State v. Williams, 36 Utah 273, 103 P. 250, 252, wherein defendant was prosecuted for rape on a child of 10, evidence of prosecutrix, that after assault had been completed, defendant stated there were other female children that had come to his home with...