State v. Scott

• Decision Date: 11 March 1920
• Docket Number: 3430
• Citation: 188 P. 860,55 Utah 553
• Court: Utah Supreme Court
• Parties: STATE v. SCOTT

188 P. 860

55 Utah 553

STATE v. SCOTT

No. 3430

Supreme Court of Utah

March 11, 1920

Appeal from District Court, Fifth District, Beaver County; D. H Morris, Judge.

Frank Scott was convicted of rape, and appeals.

REVERSED and REMANDED, with directions to grant a new trial.

W. F Knox, of Beaver City, for appellant.

Dan B Shields, Atty. Gen., James H. Wolfe, O. C. Dalby and H. Van Dam, Jr., Asst. Attys. Gen., for the State.

FRICK, J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The defendant was charged with the crime of rape, and was convicted in the district court of Beaver county and appeals.

For the reasons hereinafter stated we feel compelled to reverse the judgment of conviction and to remand the cause for a new trial. For that reason, and because no good purpose could be subserved by stating the evidence, we shall refrain from doing so, except in connection with and to the extent only that it is necessary to elucidate the particular point decided.

The defendant has assigned a large number of errors. We shall, however, limit our discussion to such only as are deemed material.

The question that is involved in the first assignment arose as follows: At the preliminary hearing before a justice of the peace the state produced the prosecutrix as a witness, who, in effect, stated that on the evening of December 13, 1917, she, at the request of the defendant, started with him from the town of Milford to the town of Beaver, in Beaver county, but that they did not reach the latter place; that they started from a certain cafe owned by one Frank Mishina, a Jap, at about 7:30 p. m. and that Mishina saw them start from said cafe. The state also produced said Mishina at the preliminary hearing, who upon being questioned by the prosecuting attorney, in substance testified that the prosecutrix was employed by him in his cafe as a waitress, and that the defendant was one of his customers; that the prosecutrix at a certain time, the exact date he could not state, but about a week or a week and a half before Christmas, left the cafe one evening at about 7:30 o'clock, but he did not see, and could not state, and did not know, with whom she went away. At the trial in the district court the prosecutrix was again produced as a witness, and again testified to the facts before stated. Mishina was also again called by the state, and he stated the same facts in practically the same language as he had done before the justice of the peace. The prosecuting attorney was not satisfied with the Jap's statements that he did not see the prosecutrix and defendant leave the cafe on the evening in question, and that he did not know with whom she went away. The prosecutor then asked the witness whether he had not stated to the sheriff in the presence of others, naming them, that he saw the prosecutrix and the defendant leave his cafe on the evening in question. The witness denied the statements attributed to him, and the prosecuting attorney, over the objections and exceptions of defendant's counsel, was permitted to ply the witness with very leading and suggestive questions, in which the veracity and credibility of the witness were vigorously assailed. The prosecuting attorney was also permitted to state in the presence of the jury that he expected to call the sheriff and the other persons named by him to contradict the witness. On being cautioned by the court he did not disclose what he expected to prove by them. While the court permitted the prosecuting attorney to put leading questions to the witness and to ask him concerning certain assumed or supposed statements, it, nevertheless, refused to permit the prosecuting attorney to call the sheriff and the other persons to impeach the witness. Counsel for the defendant, vigorously assails the court's rulings in permitting the leading questions, and insists that they constitute prejudicial error.

It is elementary that the state may not impeach its own witness by showing his general reputation for truth and veracity. It is, however, also elementary that the state, like all other litigants, in case a witness makes conflicting statements, may call his attention to such conflicting statements, and, in case he has misled or deceived the state to its prejudice, it may, under certain circumstances, produce the persons who heard him make the statements which conflict with his testimony and show by them what the witness said. We have no such case here, however. Here the witness, when under oath, adhered to the same statements throughout the entire examination. Moreover, the state always knew precisely what his statements were, and as a matter of course could not have been deceived or misled by anything he testified to. Then, again, the witness did not question or deny the fact that the prosecutrix left the cafe with the defendant, as stated by her. All that he insisted upon from first to last was that he did not see them leave the cafe, and did not know with whom she left, nor did he know the precise date of her leaving. There was, therefore, not the slightest ground on which to base the state's attempted impeachment. Nor was there any reason which would authorize the state to contradict the statements of the witness. Hence it was a gross injustice to him to even indirectly assail his veracity as was done. The most that can be said is that the statements of the witness did not come up to the expectation of the prosecuting attorney in the matter. In view of all the circumstances, however, the state did not even have any reason to expect any other statements from the witness than were made by him. This case, therefore, clearly comes within the doctrine stated in 40 Cyc. 2696, namely:

"The mere fact that a witness has failed to testify as expected does not warrant impeaching him by proof of prior statements in conformity to what he was expected to testify; but proof of prior contradictory statements of a party's own witness is admissible only where the witness has given affirmative testimony hostile or prejudicial to the party by whom he was called; and in such case the proof must be confined to contradictions of the testimony of the witness which is injurious to the party seeking to impeach him."

The rule ordinarily applicable where conflicting statements of a witness are admissible is also stated by this court in State v. Inlow, 44 Utah 485, 500, 141 P. 530, Ann. Cas. 1917A, 741.

The rule stated in Cyc. is fully supported in Bullard v. Pearsall, 53 N.Y. 230, and in Blough v. Parry, 144 Ind. 463, 40 N.E. 70, 43 N.E. 560.

The court therefore committed manifest error in permitting the prosecuting attorney to interrogate the witness in the manner hereinbefore stated. In view of what is disclosed by the record the court might just as well have permitted the prosecuting attorney to produce the impeaching witnesses and permit them to testify fully respecting the alleged statements. To have done that might, perhaps have been less prejudicial than what was in fact permitted.

What has been said respecting the witness Mishina is equally true respecting the testimony of the witness Larsen. While it is true that the prosecuting attorney did not attempt to show that Larsen made conflicting statements, he was nevertheless permitted, by means of leading and suggestive questions and otherwise, not only to seriously reflect upon the motives of the witness, but also to seriously assail his veracity, all of which was wholly uncalled for. The controversy respecting this witness arose over a certain sales slip which defendant's counsel introduced in evidence as part of the cross-examination of the witness. The materiality of the sales slip arose as follows: The prosecutrix testified that on the evening of the 13th of December, 1917, the evening in question, defendant, in her presence, had purchased from the witness Larsen four lamp globes for use on his car. The defendant denied that he was out with the prosecutrix on the evening in question, and the sales slip showed that the four lamp globes were purchased by the defendant from the witness Larsen on August 5, 1917, and not on December 13th. The evidence of the witness Larsen also was to the effect that the four lamp globes in question were the only ones that were purchased by the defendant from the witness. While the witness had also testified at the preliminary hearing, yet he, at that time, was not interrogated concerning the sales slip. In view, therefore, that the date on the sales slip was in sharp conflict with the statement made by the prosecutrix respecting the time when the lamp globes were purchased, the prosecuting attorney, it seems, was quite desirous to destroy the effect of the sales slip, and in doing so, over the objections of the defendant, was permitted to cross-examine his own witness at great length upon the theory that he was a "hostile witness." There is absolutely nothing in the record from which it can legitimately be inferred that the witness was either favorable to the defendant or hostile to the state. Indeed, the witness seemed to be quite fair and impartial. We thus have a single transaction, which was evidenced by a sales slip issued by a clerk or bookkeeper of the witness in due course of business. This sales slip, in due time, was delivered to the defendant, and at the time when he paid for the lamp globes, and he in turn delivered it to his counsel, who produced it at the trial and introduced it in evidence as a part of the cross-examination of the witness Larsen, as he had a perfect right to do. So far as the record shows, the transaction was quite regular. Moreover, it seems that the sales slip had passed from Larsen's mind until it was recalled to his attention at the trial. The sales...