State v. Slane

• Citation: 41 P.2d 269,48 Wyo. 1
• Decision Date: 18 February 1935
• Docket Number: 1871
• Parties: STATE v. SLANE
• Court: United States State Supreme Court of Wyoming

41 P.2d 269

48 Wyo. 1

STATE v. SLANE

No. 1871

Supreme Court of Wyoming

February 18, 1935

APPEAL from the District Court, Hot Springs County; C. D. MURANE Judge.

Floyd Slane was convicted of statutory rape and he appeals.

Reversed and Remanded.

For the appellant, there was a brief by Chester Ingle, of Thermopolis, and Chester Ingle, Jr., of Casper,, and oral argument by C. R. Ingle.

Where accused testifies in his own behalf, the court should instruct the jury that he is a competent witness for himself and as to the credibility and weight to be given his testimony. 16 C. J. 2443; Blashfield's Vol. 3 (2d Ed.) Sec. 6655; People v. Archibald, 101 N.E. 582; State v. Metcalfe, 43 P. 182; Territory v. Livingston, 84 P. 1021. The court erred in refusing defendant's requested instruction that the prosecution must rely and prove the act and time indicated in the information, there being evidence of other acts of intercourse before the time relied on. 52 C. J. 1052; State v. Yeager, 168 N.W. 748; State v. Masletter, 47 N.W. 541; People v. Elgar, 171 P. 697. The court erred in instructing the jury that the testimony of prosecutrix did not require corroboration and in refusing defendant's requested cautionary instruction that the testimony of prosecutrix should be examined with care. 52 C. J. 1122, 22 R. C. L. 1230. The court erred in excluding defendant's offered evidence that prose cutrix had maintained improper relations with other men at or about the time of the alleged offense, it having been shown that prosecutrix had given birth to a child. St. v. Quirk, 268 P. 189; State v. Mobley, 87 P. 815; People v. Fong Chung, 91 P. 105; People v. Boston, 139 N.E. 880. This is especially true in a state where a conviction may be had for rape upon the unsupported testimony of the prosecuting witness. Lusty v. State, 261 S.W. 774; State v. Perry, 186 N.W. 310; Parvin v. State, 136 S.W. 453. These offers of proof go to show immoral conduct of the prosecuting witness and wrongful acts with others. See authorities cited above. The complaint was admissible in evidence. 22 R. C. L., Sec. 48; Henderson v. State, 123 N.W. 459. The complaint alleges the act to have occurred in April, 1932. All of this affected the credibility of the witnesses. The court erred in excluding evidence of demand made by the mother of the prosecutrix for a sum of money from defendant. Hardike v. State, 30 N.W. 723. The court erred in admitting testimony of a witness who had cautioned defendant that his meetings with the prosecutrix at the A. & R. Garage were causing talk; that prosecutrix was under age and that defendant would get himself into trouble, all of which was entirely extraneous to this case and could have no other effect than to prejudice the jury against this defendant. The court erred in excluding offered testimony from Mr. Crilly and from Mr. Herard, as to medicines purchased from them by prosecutrix. The court erred in excluding testimony offered by defendant of improper relations of prosecutrix at or about the date of the alleged offense. 52 C. J. 1082; 22 R. C. L. 1211; State v. Quirk, supra; Skidmore v. State, 123 S.W. 1129; Bader v. State, 122 S.W. 555; State v. Mobley, supra. The court erred in excluding defendant's offered testimony that the usual and ordinary period for the birth of a child from and after pregnancy is 288 days, which would have shown that prosecutrix became pregnant about January 26, 1932, three to four weeks prior to the time the prosecutrix testified she first became acquainted with the defendant. 52 C. J. 1078; State v. Blackburn, 110 N.W. 275; State v. Blackburn, 114 N.W. 532; Jackson v. State, 218 S.W. 369. It having been shown that the child was a full term and fully developed child. See Homnyack v. Insurance Company, 87 N.E. 769. The court erred in permitting Mrs. King, mother of prosecutrix, to relate a conversation that she had with W. T. Slane, father of accused. Gaines v. State, 26 S.E. 760.

For the respondent, there was a brief by Ray E. Lee, Attorney General; O. O. Natwick, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Wm. C. Snow.

The trial court in sustaining the objection to the offer of defendant to show improper relations with other men, gave as his reason that the birth of the child had been brought out not by the State but by the defendant himself. The law as laid down in State v. Quirk, 38 Wyo. 462, is that where the State brings out the pregnancy of the prosecutrix, the defense may show relations with other men, with the idea that defendant was not necessarily the father. The point therefore turns upon whether or not it was the State or the defendant who first brought out the pregnancy or birth of the child. The evidence shows that the fact of pregnancy and birth of a child was brought out first by the defense, and that the trial judge was correct in refusing to allow the defense to go into the matter of the relations of the prosecutrix with other men. Defendant complains of the court's refusal to instruct that unless the jury believed the offense was committed on March 20th, they should acquit defendant. The instruction given on this point was that it was incumbent on the State to prove the offense was committed on or about March 20th. This form of instruction has the support of the authorities. 14 R. C. L. 181; 22 R. C. L. 1195; Sec. 33-416, R. S. 1931; State v. Spiegel, 39 Wyo. 309. Reputation for chastity has no bearing on credibility. 22 R. C. L. 1121; People v. Boston, (Ill.) 139 N.E. 880. Defendant complains that the court erred in sustaining the objection to the question put to Dr. Pearce as to what the ordinary period is, for a full term or fully developed child, from the date of the act of becoming pregnant. This cannot be said to have prejudiced the defense, because this period, as is commonly known, varies materially. The purpose of this offer was to establish an act of pregnancy several weeks prior to that alleged in the information, but it would not have accomplished that effect because the usual nine months, dating back from November 13th, would establish the date shown by the evidence of prosecutrix, as to her first meeting with defendant. The same may be said of the testimony offered from the nurse and the refusal of the court to permit the birth certificate to be introduced. The jury had been instructed that the fact of birth or pregnancy was not to be taken into consideration at arriving at their verdict. Under the heading of curative admissibility, a matter within the discretion of the court, we cite: 22 C. J. 195-7; Parker v. Dudley, 118 Mass. 602; Bennett v. Susser, 191 Mass. 329; Jones v. Werthan Bag Co., (Mo.) 254 S.W. 4.

Chester Ingle for appellant in reply.

If, as contended, the birth of a child and pregnancy are immaterial, then why did the State bring these facts before the jury and why do the courts allow the State to do so? 52 C. J. 1077. The record discloses how very damaging these facts were to defendant. The rule almost unanimously followed, allows defendant to show the wrongful conduct of prosecutrix, when the State brings out the pregnancy or birth of a child. 52 C. J. 1082. State v. Williams, 109 So. 515; People v. Currie, 111 P. 108; People v. Boston, 139 N.E. 880.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

The defendant in this case was convicted of having carnal knowledge of Dorothy Isaacson, a female under the age of 18 years and hereinafter called the prosecutrix. From a judgment entered in accordance with the finding of the jury, the defendant appeals. A number of errors have been assigned,

1. The court instructed the jury that one of the material obligations, which was required to be proved beyond a reasonable doubt, was that the defendant did on or about the 20th day of March, 1932, carnally know Dorothy Isaacson. The state, pursuant to an order of the court, elected to rely on that date as the date of the crime for which the defendant was being prosecuted. The defendant, deeming the clause "on or about" too indefinite, asked the court to instruct the jury that unless they found the crime to have been committed on March 20th, 1932, they should acquit the defendant. This instruction was refused, and the defendant complains thereof. Ordinarily the exact time is not important, but the circumstances in a case, as when evidence of two or more crimes appear, may render it so. State v. Tobin, 31 Wyo. 355, 226 P. 681. In the case at bar the prosecutrix testified to several acts of sexual intercourse comparatively shortly before and after the 20th day of March, as well as to the act of intercourse of that date. The other acts to which she testified could not have been earlier than some time after the 14th day of February and not later than the latter part of April of the same year. Testimony of these crimes was admissible only in corroboration, and for no other purpose. Strand v. State, 36 Wyo. 78, 85, 252 P. 1030. Yet the term "on or about" March 20 might be considered flexible enough by the jury so as to have included any or all the acts of sexual intercourse mentioned by the prosecutrix. Under these circumstances it has been held error for the court not to give an instruction like that asked by the defendant in this case. Spencer v. State, 24 Ala.App. 140, 131 So. 456, and State v. Pitman (N. J. Sup.), 119 A. 438, are exactly in point. See also Love v. State, 142 Miss. 602, 107 So. 667, and People v. Elgar, 36 Cal.App. 114, 171 P. 697. In the first of these cases, it was said:

"The testimony as to the defendant's prior censurable association with prosecutrix being before the jury, it is easy to see how they may have become confused as to whether or not it was...