State v. Searle

• Decision Date: 21 January 1952
• Docket Number: No. 9069,9069
• Citation: 239 P.2d 995,125 Mont. 467
• Parties: STATE v. SEARLE.
• Court: Montana Supreme Court

Page 995

239 P.2d 995

125 Mont. 467

STATE v. SEARLE.

No. 9069.

Supreme Court of Montana.

Jan. 21, 1952.

DeKalb, Dockery & Symmes, Lewistown, Wellington D. Rankin, Arthur P. Acher, Helena, for appellant.

Arnold H. Olsen, Atty. Gen., Glen E. Cox, Asst. Atty. Gen., J. E. McKenna, County Atty., Donald E. Ronish, Deputy Co. Atty., Lewistown, for respondent.

ANGSTMAN, Justice.

Defendant was charge with, tried and convicted of the commission of a felony involving a named boy of tender years in violation of R.C.M. 1947, Sec. 94-4118, committed on or about March 17, 1950. His motion for a new trial was denied and he has appealed from the judgment sentencing him to imprisonment for 25 years, and from the order denying his motion for a new trial.

One of the assignments of error raises the question whether the court committed error in permitting the calling of several witnesses designed to show other offenses committed in the same manner that the offense charged was committed against the named individual after the court had ruled that such evidence was inadmissible. The evidence shows that defendant employed the prosecuting witness on the evening of March 16, 1950, and again on March 17, 1950, to work at his place of business in Lewistown. The prosecuting witness told in detail how on the evening of March 17th defendant committed the act for which he was charged, at which time no one other than defendant and the prosecuting witness was at the place of business of defendant. The state thereupon called to the witness stand another boy who had been employed by defendant who was asked why he had gone to defendant's place of business. Defendant objected to this question. A recess was taken during which time the state, in the absence of the jury, made an offer to prove that the defendant had on separate occasions committed similar offenses with the witness. Defendant's objection to such offer of proof was sustained. Notwithstanding this ruling by the trial court, the state called another boy to the witness stand who had been at defendant's place of business and asked him why he had gone there. Another recess was taken and defendant made this general objection: 'The defendant objects to the continual placing of further witnesses on the stand on the part of the state to testify as to facts which the court has heretofore ruled inadmissible, on the ground that it tends to put before the jury indirectly matters which they cannot put before the jury directly, and we object to the state seeking to offer to put on the witness stand any more witnesses who they will attempt to have testify to other acts with other persons similar to those charged in the information. There is no objection to offers of proof in which the witnesses may be named and treated the same as if on the stand, but names of further witnesses should be placed in the offers of proof rather than put upon the witness stand.'

This objection was overruled and several more boys were placed upon the witness stand and after the usual preliminary questions, each was asked why he had gone to defendant's place of business. The court sustained the objection of defendant to these questions. Defendant sought to have the effect of the state's manner of placing the witnesses upon the stand minimized by an offered instruction, but this the court refused to give.

It is our view that prejudicial error was committed by the calling of these witnesses and placing them upon the witness stand and asking them why they had gone to the defendant's place of business, after the court had ruled that such evidence was inadmissible. The rule is stated in 64 C.J., Trial, p. 135, Sec. 156, as follows: 'Evidence of the same kind as that previously ruled incompetent should not be repeatedly offered in the hearing of the jury, and if so offered, even though rejected, may be ground for reversal.'

This state gave application to this principle in the cases of State v. Kanakaris, 54 Mont. 180, 169 P. 42; State v. Belland, 59 Mont. 540, 197 P. 841; State v. Shannon, 95 Mont. 280, 26 P.2d 360; and State v. Peterson, 102 Mont. 495, 59 P.2d 61. To the same effect is 16 C.J., 'Criminal Law,' p. 892, Sec. 2229, par. 2, 23 C.J.S., 'Criminal Law,' Sec. 1087. The same rule is stated in 53 Am.Jur., 'Trial,' p. 360, Sec. 459, as follows: 'Other instances of misconduct are the wilful bringing in or attempting to bring in of irrelevant, previously excluded, or incompetent evidence for the purpose of prejudicing the opposing party * * *.'

The state takes the view that the court erred in excluding this class of testimony and that therefore no prejudice resulted to the defendant. Were we to assume that such evidence were admissible, it would still not follow that the defendant has had a fair trial. The court excluded such evidence and in that manner deprived the defendant of the right of cross-examining these boys on the vital questions touching upon supposed offenses similar to that charged by the prosecuting witness. True, they were not permitted to testify to those facts, but the reasonable inference to the drawn by the jury was that the defendant had committed like acts upon the several boys involved.

In view of the foregoing the court erred in denying defendant's motion for a new trial. Since a new trial must be had other questions require consideration and particularly whether evidence of other similar offenses was or is admissible.

The rule in this state is that such evidence is incompetent and the court properly ruled against its admissibility. State v. Sauter, Mont., 232 P.2d 731.

Defendant contends that he was unduly restricted in the cross-examination of the prosecuting witness. Defendant sought to develop upon cross-examination of the prosecuting witness that he was an accomplice. The prosecuting witness admitted that he knew it was wrong to do what he did. He was then asked: 'Q. And you knew you were not allowed to do that under the law?' An objection to this question was sustained by the court. The court, however, gave to the jury the following instruction over defendant's objection: 'You are instructed that in order to constitute a minor an accomplice in the perpetration of a crime, it must appear by clear proof that at the time of committing the act the child understood the nature and effect of the act that constituted the offense, that the act was forbidden, that he knew he was committing a wrongful act, and that he actually and knowingly consented to be a party to the alleged offense.' This instruction was practically in the language of the court's opinion in the case of People v. Williams, 12 Cal.App.2d 207, 55 P.2d 223. The instruction was proper, but defendant was unduly restricted in the cross-examination of the prosecuting witness in not being permitted to develop the fact that he knew the act in question was forbidden by law.

The next question raised by defendant is that he was unduly restricted in the cross-examination of the prosecuting witness in matters which tended toward his impeachment. He contends that he should have been permitted to show that the witness had made statements inconsistent with his present testimony under the express provisions of section 93-1901-12. The prosecuting witness had testified that on the evening of March 17th, after working at defendant's place of business for about a half hour, he started to go home, and defendant said, 'Wait a minute, aren't you going to take the swats tonight?' Thereupon about twelve swats were administered to the witness by the defendant with a clothesline rope, and defendant then gave the prosecuting witness a five dollar bill, which the witness showed to his mother when he got home, telling her that it was for the swats. And he told her that he had no other money. He also testified that he had no other money before then except 50 cents a couple of days before, which his mother gave him. He denied that he had gotten any money from the Montana or Monarch Lumber Company before the 17th of March. Defendant sought to show that at a juvenile hearing before the district court of Fergus county the prosecuting witness had testifed to the effect that he had gone into the Montana and Monarch Lumber Company and taken ten dollars on March the 12th. The objection to this testimony was sustained upon the ground that such proceedings before the juvenile court are in the nature of confidential communications by virtue of R.C.M. 1947, Sec. 10-611, which reads in part as follows: 'The disposition of the delinquent child or any evidence given in the court shall not be admissible as evidence against the child in any other case or proceeding.' The court should have admitted this testimony. The prosecuting witness was not a party to this proceeding. The purpose of the statute above quoted is to protect the children who have been before the juvenile court, but the prosecuting witness here is not a party to this proceeding and the purpose of the statute is not defeated by allowing statements made by him in the juvenile proceedings inconsistent with those made here to be used for the purpose of impeachment.

The state relies upon the case of Malone v. State, 130 Ohio St. 443, 200 N.E. 473, as sustaining the view that the record of the juvenile court is inadmissible whether sought to be used against the child as a party or as a witness. But that case did not deal with contradictory statements made by the child as here. The same is true of State v. Kelly, 169 La. 753, 126 So. 49, relied on by the state. The other case relied on by the state is State v. Cox, Mo. Sup., 263 S.W. 215, 217. That case supports the view taken by the trial court here, but the statute there considered was broader than ours. The Missouri statute considered in State v. Cox provided that, 'any evidence given in such cases shall not in any civil, criminal or other cause or proceeding whatever in any court be lawful or proper evidence against such child for any purpose...