State v. Short

• Decision Date: 21 July 1924
• Citation: 39 Idaho 446,228 P. 274
• Parties: STATE, Respondent, v. PATRICK ALBERT SHORT, Appellant
• Court: Idaho Supreme Court

228 P. 274

39 Idaho 446

STATE, Respondent, v. PATRICK ALBERT SHORT, Appellant

Supreme Court of Idaho

July 21, 1924

CRIMINAL LAW - RAPE - EVIDENCE - CORROBORATION - PROSECUTRIX-REPUTATION FOR CHASTITY AND TRUTH.

1.A person may be convicted of rape upon the testimony of the prosecutrix where there is no direct evidence corroborating her testimony only when her reputation for chastity and truth are unimpeached and the circumstances surrounding the commission of the offense are clearly corroborative of her statements.

2.A judgment of conviction of rape based upon the testimony of the prosecutrix alone cannot be sustained in any event unless the circumstances surrounding the commission of the offense are clearly corroborative of her statements.

APPEAL from the District Court of the Seventh Judicial District, for Payette County.Hon. B. S. Varian, Judge.

Appellant was convicted of statutory rape.Reversed.

Reversed.

Norris & Sutton, George Donart, J. B. Eldridge and Wm. M. Morgan for Appellant.

The statute fixing the age of consent (C. S., sec. 8262) does not render a girl under that age incapable of committing a sexual crime.(Ex parte Nesson, 25 S.D. 49, 125 N.W. 124, 27 L. R A., N. S., 872;State v. Learned,73 Kan. 328, 85 P 293.)Therefore, if the crime charged was committed, the prosecutrix was, according to her own testimony, an accomplice and a principal in its commission (C. S., sec. 8093), and her uncorroborated testimony is insufficient to justify the verdict of guilty or to support the judgment of conviction (C. S., sec. 8957).

The withholding of evidence which was within the power, and was the duty, of the state to produce raises a strong presumption that if it had been produced it would have tended to establish the innocence rather than the guilt of appellant.(22 C. J., p. 111, sec. 53;10 R. C. L., p. 887, sec. 35;Beal v. Congdon,75 Mich. 77, 42 N.W. 685;Tetreault v. Smedley Co.,81 Conn. 556, 71 A. 786;State v. Hogan,67 Conn. 581, 35 A. 508;State v. Topalovacki(Mo.),213 S.W. 104;McMickens v. State,16 Ala. App. 78, 75 So. 626;United States v. Mendez, 19 P. I. 28.)

Where the prosecutrix on a charge of rape is in no way corroborated and the accused denies the charge and is corroborated in such denial, the testimony of the prosecutrix is insufficient to warrant a conviction (State v. Trego,25 Idaho 625, and cases therein cited on page 648), and where the truth of the account given by the prosecutrix, as to what occurred at the time and place she asserts the crime was committed, is improbable her uncorroborated testimony is not sufficient to justify a verdict of guilty nor to support a judgment of conviction.(State v. Baker,6 Idaho 496. 56 P. 81;State v. Anderson,6 Idaho 706, 59 P. 180;State v. Clark,27 Idaho 72, 146 P. 1107;State v. Andrus,29 Idaho 11, 156 P. 421;Morris v. State, 9 Okla. Cr. 241, 131 P. 731;Allen v. State, 10 Okla. Cr. 55, 134 P. 91;State v. Hobson(Mo.),177 S.W. 374;Ex parte Ledington(Okla. Cr.), 192 P. 595;Force v. State,105 Neb. 175, 179 N.W. 387, and cases cited.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

The prosecutrix in a statutory rape case is not an accomplice in the commission of the crime.(C. S., sec. 8262;State v. Hilberg,22 Utah 27, 61 P. 215;People v. Bernom,29 Cal.App. 424, 155 P. 1021;Yeager v. United States (D. C.),16 App. Cas. 356;Price v. State,64 Tex. Cr. 448, 142 S.W. 586;Whittaker v. Commonwealth,95 Ky. 632, 27 S.W. 83;Bond v. State,63 Ark. 504, 58 Am. St. 129, 39 S.W. 554;State v. Henderson,84 Iowa 161, 50 N.W. 758;Price v. State,56 Tex. Cr. 82, 119 S.W. 99;Radke v. State,107 Ohio 399, 140 N.E. 586;16 C. J., p. 683, sec. 1392;State v. Tuttle, 67 Ohio 440, 93 Am. St. 689, 66 N.E. 524.)

It is unnecessary that a prosecutrix in a statutory rape case be corroborated unless her testimony is so inherently improbable or nullified by self-contradictions as to be unworthy of belief.(State v. Anderson,6 Idaho 706, 59 P. 180;State v. Trego,25 Idaho 625, 138 P. 1124.)

WM.E. LEE, J. McCarthy, C. J., and Ensign, District Judge, concur, William A. Lee, J., concurs in the result.Budge, J., dissents.

OPINION

WM.E. LEE, J.

--Patrick Albert Short was convicted of the crime of rape and was sentenced to imprisonment in the state penitentiary for a period of not less than five or more than six years.On the evening of the 25th day of December, 1921, Short, sixteen years of age, in company with two other boys and three girls, went riding in an automobile.Short is the son of a farmer, residing some three miles from the city of Payette, and he and the two other boys and the three girls, who were the daughters of farmers residing near Payette, were students in the high school.The testimony of the prosecutrix is to the effect that Short and the other boys called at her house about 8 o'clock in the evening; that she and one of the other girls got into the automobile, and the five went to the house of a neighbor for the third girl, and waited there while she got ready for the ride; that they then drove to Payette where they stopped and had the radiator of the car filled with water; that they then proceeded a few miles from Payette to Washoe Hill; that Short stopped the car and said that they were out of gas; that "After we stopped, we started talking about school awhile and then ceased; and he started to put his hands on me where he had no business and I took them away and told him to stop.We had the lights on and it was snowing and we were watching the snow fall between the rays of light; and after awhile . . . .Margaret got out and Freddie got up in the front seat with us, and Cecil and Grace occupied the back of the car for a certain number of minutes; and then Pat threatened to turn the light on them and Cecil told him not to.And then Cecil asked Pete (Pat) if it was not our turn next for that seat and I said, 'No,' and Pat wanted to know why and I told him because I was not going to.He still wanted to know why and I told him it was not decent, and he kept insisting then and I told him I was somewhat unwell; and then Freddie got out and Grace and Cecil came up in front with us and we all four sat in the front seat for a few minutes, and finally Pat got out of the front seat and he went to the rear of the car and he invited me back there and I would not go, and Cecil kept insisting on my going back and I would not go, and they stayed back there and kept wanting me to go back for quite awhile and Margaret was standing out in the storm and we wanted her to come in and she would not do it.She did not want to go back in the back car as Freddie was back there, and Pat told me to come back anyway then, and I told Margaret if she would get in the front I would get in the back, and when I got in the back seat Freddie left and went up in front.We were in the rear of the car for a few minutes and Cecil got kind of coaxing me on and insisted I should have sexual intercourse with him and he told Pat to shove me over, and Pat did shove me over and then he turned around and told Pat to go to it and he had sexual intercourse with me in the back seat and it was fully accomplished; . . . . "

The prosecutrix further testified that after Short had accomplished his purpose she and Short sat together in the front seat and Short drove back to Payette to Margaret's home where she was left, then to the home of the prosecutrix where water was put in the radiator of the car, and the prosecutrix and Grace brought out some cake for the boys.Prosecutrix also testified that some months before at a chicken-pie social at the high school, Short suggested to her, in the presence of two other boys and two other girls, that she have sexual intercourse with him.A letter was admitted in evidence written by Short to the prosecutrix, prior to the alleged crime, in which he remonstrated with her for some of the things which she had been saying to some of their friends and which closes as follows: "Then you told Fat I was slow, well I'm tellin' you if I get you out again you'll think I'm a whirlwind, I ain't kiddin' you."Prosecutrix told her mother what had happened to her some three months afterward.

Short testified in his own behalf, and his testimony agreed in all substantial respects with that of the prosecutrix except as to the reason for stopping the car on the Washoe Hill, as to the length of time they stopped on the hill, and as to his actions with respect to the prosecutrix.He denied that he attempted to or had sexual intercourse with the prosecutrix.He also denied that he had asked prosecutrix to have sexual intercourse with him upon the occasion of the chicken-pie social.The prosecutrix estimated that they stopped on the hill about an hour, while Short gave it as his best judgment that they were there a much shorter time.The reason assigned by Short for stopping on the hill was that the engine had become hot and that upon stopping the car he immediately got out and took off the radiator cap.In this he is corroborated by the girl, Margaret, whose testimony in this respect contradicted that given by the prosecutrix.

The only assignment of error necessary to be considered is that the evidence is insufficient to sustain the verdict and the judgment entered thereon.Appellant insists that where the prosecutrix is not corroborated, in such a case as this, and the accused denies the charge and is corroborated in his denial, the testimony of the prosecutrix is not sufficient to warrant a conviction; and that where the truth of the account, given by the prosecutrix, as to what occurred at the time and place she asserts the crime was committed, is improbable, her uncorroborated testimony is not...