State v. Smailes
| Decision Date | 03 December 1931 |
| Docket Number | 5760 |
| Parties | STATE, Respondent, v. KENNETH SMAILES, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-MOTION IN ARREST OF JUDGMENT-RESERVATION OF GROUNDS FOR REVIEW-RAPE-INDICTMENT AND INFORMATION-CONVICTION OF LESSER CRIME-EVIDENCE-OTHER ACTS OF PROSECUTRIX-WITNESSES-CROSS-EXAMINATION-MEDICAL WITNESS-OPINION EVIDENCE.
1. Since motion to arrest judgment is limited to defects authorizing demurrer, court properly overruled motion assigning no grounds of demurrer (C. S., secs. 8870, 9019).
2. Prosecutrix' testimony that whiskey was in house on night of alleged rape held harmless, since accused testified she had few drinks which exhausted jug.
3. Jury held entitled to consider evidence of liquor in accused's house, where rape allegedly occurred, to establish design to have sexual intercourse.
4. Trial judge's remarks during voir dire examination of jurors, not objected or excepted to, will not be reviewed (Sess. Laws 1927, chap. 24, sec. 1, p. 28).
5. Witnesses' remarks during trial, not objected or excepted to, will not be reviewed (Sess. Laws 1927, chap. 24, sec. 1 p. 28).
6. Information charging rape of female under eighteen years old without alleging force sustained verdict of assault with intent to commit rape, since former offense necessarily includes latter (C. S., sec. 8997).
7. On competent evidence showing completed rape, jury may convict for assault with intent to commit rape.
8. Evidence additional to that of completed rape held sufficient to sustain verdict of later assault with intent to commit rape.
9. Instruction that act while voluntarily intoxicated was not thereby rendered less criminal was proper on theory of completed rape (C. S., sec. 8089).
10. In assault with intent to commit rape, failure to give instruction that jury might consider intoxication in determining intent was not error unless requested notwithstanding its propriety (C. S., sec. 8089).
11. In view of medical testimony respecting prosecutrix' vagina morning after alleged rape and her actions before crime, her cross-examination regarding previous specific acts of sexual intercourse was improper.
12. Where state corroborates prosecutrix by introducing medical evidence of sexual intercourse, accused may show her specific acts of sexual intercourse with others to negative inferences against accused within limitations disclosed by medical testimony and circumstances.
13. Accused cannot cross-examine witness generally on matters not stated on, nor connected with, direct examination.
14. Accused may not open his case to support it by cross-examining state's witnesses respecting matters not introduced on direct examination.
15. After prosecutrix on direct examination answered proper but leading question, objection as leading without motion to strike out held properly overruled.
16. Accused held not unduly restricted in cross-examining prosecutrix regarding conversation with woman whom she denied telling that she had no sexual intercourse with accused on stated night.
17. After accused's direct testimony of imprisonment in penitentiary, cross-examination as to when released was proper (C. S., sec. 8034).
18. Proof in rebuttal of defense witness' conversation with prosecuting attorney held proper after her evasive denial, on direct examination, of statement.
19. Permitting witness present to rebut defense witness' testimony on direct examination of coercion in making statements to prosecuting attorney was not abuse of discretion.
20. Offer of proof merely showing prosecutrix' opportunity for sexual intercourse with another held properly refused.
21. Testimony of sexual intercourse between prosecutrix and another "about a week before" accused's alleged offense held too remote under medical evidence.
22. Proposed testimony that prosecutrix was in hotel room all night with another man two days before accused's offense held too remote under evidence.
23. Court's refusal to permit witness to name man for whom prosecutrix called after escaping from accused attempting rape held proper, witness' testimony not being material.
24. Question to medical witness enumerating prosecutrix' acts in jumping from window and going to neighboring house after alleged rape held objectionable, since not stating germane facts.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.
Appellant was convicted of assault with intent to commit rape and appeals. Affirmed.
Affirmed.
Leo McCarty and C. D. Livingstone, for Appellant.
The court should have sustained the defendants' motion in arrest of judgment for the reason that there is a fatal variance between the allegations of the information and the evidence adduced at the trial and the crime of which the defendant was found guilty and there was no evidence whatever produced tending to show that the defendant was guilty of the crime of assault with the intent to commit rape. (State v. Fong Wee, 47 Idaho 416, 275 P. 1112.)
The evidence is insufficient to sustain the verdict of guilty with assault to commit rape and there was no evidence in the record whatever that the defendant was guilty of assault with intent to commit rape. (State v. Baker, 6 Idaho 496, 56 P. 81; State v. Johnson, 26 Idaho 609, 144 P. 784; State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; Reynolds v. State, 58 Neb. 49, 78 N.W. 483; People v. Baldwin, 117 Cal. 244, 49 P. 186.)
Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.
Motion in arrest of judgment may be made only on such defects in the indictment or information as would be subject to demurrer or motion to quash. (C. S., secs. 8878, 9019; State v. McClurg, 50 Idaho 762, 300 P. 898; State v. Frank, ante, p. 21, 1 P.2d 181); and a failure to demur or move to quash waives any defects therein. (State v. Knutson, 47 Idaho 281, 274 P. 108.)
Error in the admission of evidence is not prejudicial where the same facts are established by the defendant, or other testimony not objected to. (17 C. J. 324; State v. Black, 36 Idaho 27, 208 P. 851; State v. McClurg, supra.)
Cross-examination must be confined to matters brought out on direct examination, and matters properly connected therewith. (State v. McClurg, supra; State v. Gruber, 19 Idaho 692, 115 P. 1; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Larkins, 5 Idaho 200, 47 P. 945; People v. Robertson, 284 Ill. 620, 120 N.E. 539.)
Improper remarks of the trial judge on voir dire examination of a juror are waived by acceptance of the juror. (35 C. J. 371; 26 R. C. L., Trial, secs. 27-31.)
Even the evidence shows completed crime of rape; the jury may convict of the included offense of assault with intent to rape, such action being beneficial and not prejudicial to the defendant. (State v. Garney, 45 Idaho 768, 265 P. 668; State v. Blythe, 20 Utah 378, 58 P. 1108; People v. Miller, 96 Mich. 119, 55 N.W. 675; In re Lloyd, 51 Kan. 501, 33 P. 307; Pratt v. State, 51 Ark. 167, 10 S.W. 233; Richie v. State, 58 Ind. 355; Campbell v. People, 34 Mich. 351; State v. Kyne, 86 Iowa 616, 53 N.W. 420; State v. McLaughlin, 44 Iowa 82.)
Appellant was convicted of assault with intent to commit rape under an information charging that "at the County of Nez Perce in the State of Idaho, the aforesaid Kenneth Smailes then and there being committed the crime of rape who then and there did wilfully, intentionally, unlawfully and feloniously have sexual intercourse" with prosecutrix, naming her, "a female not the wife of said Kenneth Smailes," while the said prosecutrix was under the age of eighteen years. The salient facts necessary to an understanding of the case are substantially as follows:
Appellant lived with his mother in a double house at Lewiston, Idaho. On January 16, 1931, his mother left Lewiston on an early train and that evening the prosecutrix, aged sixteen years, and two other young women, called at the Smailes home. Appellant, and a companion, arrived at his home about 7 o'clock, the three women about 8 o'clock, and later two more men. Appellant left the house and went downtown for about an hour and then returned. He hid a jug of whiskey that was on the floor and then lay down and went to sleep. The testimony shows that when he left town to go home he was in a state of intoxication. There are two bedrooms opening off the kitchen and he went to sleep in the west bedroom. In front of the kitchen, and connected with it by a door, was the front room. All the guests were drinking and the prosecutrix and a male guest were dancing; the woman in bloomers and brassiere, sans other clothing.
The next morning the house was in wild disorder, with broken phonograph records, toilet paper, and other debris scattered through the rooms, including women's clothing. Some time during the early morning of the 17th all the guests left, except a man and a woman, besides prosecutrix, leaving these three and appellant alone in the house. Prosecutrix testified that while the other two persons remained in the front room appellant asked her into the left-hand bedroom where she had sexual intercourse with him, after which she went to sleep. Other facts will be referred to later. Appellant admits prosecutrix was in the house; that the other parties were there; but denies that there was any illicit intercourse with prosecutrix.
Appellant seasonably moved in arrest of judgment upon three grounds: That the information charged the crime of rape and defendant was convicted of assault with intent to commit rape; that the evidence fails to show assault with intent to commit rape; that there is a fatal...
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