State v. Smith

Citation46 Idaho 8,265 P. 666
Decision Date24 March 1928
Docket Number5141
PartiesSTATE, Respondent, v. CHARLES H. SMITH, Appellant
CourtUnited States State Supreme Court of Idaho

CRIMINAL LAW-RAPE-TESTIMONY OF PHYSICIAN-ESTABLISHMENT OF CORPUS DELICTI-CORROBORATION OF PROSECUTRIX-EVIDENCE-INSTRUCTIONS-CREDIBILITY OF WITNESSES.

1. In prosecution for statutory rape, testimony of doctor as to result of his examination of prosecutrix made almost two months after date of alleged offense held admissible notwithstanding claim of its remoteness, since such objection goes to weight rather than to admissibility of the evidence and testimony tended to establish corpus delicti.

2. In prosecution for rape, check signed by defendant payable to prosecutrix and found on prosecutrix's person was sufficiently identified to render it admissible, where signature was shown to be defendant's and prosecutrix who was corroborated, testified that it was given her by defendant, with directions to leave and not appear against him on preliminary examination.

3. Prosecutrix in rape prosecution may be sufficiently corroborated by other evidence of facts or circumstances apart from or in conjunction with circumstances surrounding the commission of the offense, and corroboration need not be found exclusively in surrounding circumstances.

4. In rape prosecution, requested instruction that evidence that prosecutrix made complaint is not corroborative evidence of commission of crime, but only corroborates her testimony that she made complaint, held properly refused as erroneous and confusing.

5. In rape prosecution, requested instruction that proof of injury to prosecutrix's sexual organs was not such corroboration of the commission of the offense of statutory rape as would justify conviction held properly refused as erroneous and confusing, where other proof established identity of defendant as having committed the offense.

6. Instructions as to credibility of witness should be general and apply equally to all witnesses, and instruction which singles out the testimony of the prosecuting witness is properly refused.

7. Refusal to advise a verdict of acquittal is not reversible error.

8. Evidence of witnesses concerning defendant's statements showing attempt to procure absence of prosecutrix and other statements of defendant which they overheard held sufficient corroboration of prosecutrix in prosecution for statutory rape.

9. Repetition by prosecuting attorney of objectionable questions was improper, but did not warrant reversal, where court by sustaining objections and by instructions protected defendant against the impropriety.

APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Robert M. Terrell, Judge.

Defendant appeals from a judgment of conviction of rape. Affirmed.

Order affirmed. Petition for rehearing denied.

L. R Morgan and P. J. Evans, for Appellant.

That the verdict in said cause is contrary to law for the reason that the jury failed to follow the instruction of the court, to the effect that a judgment of conviction could not be sustained on the testimony of the prosecutrix alone, unless the circumstances surrounding the commission of the offense are clearly corroborative of her statements. (State v. Hines, 43 Idaho 713, 254 P. 217, and cases therein cited.)

That the verdict is contrary to the evidence in that there was no legal, competent testimony introduced at the trial of said cause, outside of the testimony of the prosecutrix tending to show the commission of the offense charged, nor the circumstances thereof, nor tending to connect the defendant with the commission of the crime charged, and the reputation of the prosecutrix for truth and veracity is impeached by her own admissions of having made false and contradictory statements regarding said alleged offense, under oath. (State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Andrus, 29 Idaho 1, 156 P. 421; State v. Short, 39 Idaho 446, 228 P. 274; State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Pettit, 33 Idaho 326, 193 P. 1015; People v. Wademan, 38 Cal.App. 116, 175 P. 791; State v. Hines, supra.)

That the prosecuting attorney was guilty of gross and prejudicial misconduct in persistently propounding incompetent, degrading and offensive hearsay questions to witness Roy Hall, after defendant's objection to said questions had been repeatedly sustained by the court. (State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716; 26 R. C. L. 1021, 1022; Wyatt v. State, 58 Tex. Cr. 115, 137 Am. St. 926, 124 S.W. 929; 2 R. C. L. 242, 243.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

As a matter of law a conviction may be had on the uncorroborated testimony of the prosecutrix. (State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Andrus, 29 Idaho 1, 156 P. 421; State v. Pettit, 33 Idaho 326, 193 P. 1015.)

The fact that complaint was made by prosecutrix is relevant to show the commission of the crime and to corroborate her testimony. A failure to make complaint only affects prosecutrix's credibility as a witness. (State v. Fowler, 13 Idaho 317, 89 P. 757; People v. Keith, 141 Cal. 686, 75 P. 304; 22 R. C. L. 1224; 33 Cyc. 1468; State v. Fowler, supra.)

Evidence tending to show the physical condition of the prosecutrix following the crime is always relevant as tending to show that the crime was committed, and to corroborate her testimony that the defendant was the guilty person. (Underhill on Criminal Evidence, 3d ed., p. 849.)

Evidence of an examination of the physical condition of the prosecutrix following the crime is properly admissible, and the fact that the examination was not made for considerable time after the crime merely affects its probative force. (35 Cyc. 1470; 22 R. C. L. 1218; 4 Elliott on Evidence, sec. 3107; Gifford v. People, 148 Ill. 173, 35 N.E. 754; People v. Benc, 130 Cal. 159, 62 P. 404.)

TAYLOR, J. Wm. E. Lee, C. J., and Budge, Givens and T. Bailey Lee, JJ., concur.

OPINION

TAYLOR, J.

This is an appeal from a judgment of conviction of rape upon a girl under 18 years of age, and from an order denying motion for new trial.

The offense was alleged as of March 8, 1927. Evidence of a doctor as to the result of his examination of the prosecutrix made about May 1, 1927, was received over objection, and a motion to strike it was denied. This examination was not so remote as to preclude admission of the evidence. The objection goes rather to the weight of the evidence than to its admissibility. (4 Elliott on Evidence, sec. 3107.) It tended to establish the corpus delicti, that the prosecutrix had had intercourse with someone, constituting rape at her age, and to corroborate her statements to that extent. (State v. Winslow, 30 Utah 403, 8 Ann. Cas. 908, 85 P. 433.)

Error is assigned in the admission of an exhibit, a check signed by defendant, payable to the prosecutrix, as not sufficiently identified. His signature thereto was identified. The prosecutrix had testified that he told her after his arrest upon this charge, that he would give her $ 200 to leave before his preliminary examination, and not appear against him, and as to conversations which she had overheard between defendant and his wife about this money; that he called her early in the morning to catch a train; and that she received the check of $ 185 and $ 15 in money from defendant's wife. Another witness testified that she overheard parts of these conversations between defendant and the prosecutrix, and defendant and his wife, as to these matters; and there was evidence of his having obtained $ 15 from a neighbor the night before, in denominations of currency delivered to the prosecutrix. This check and money were found upon her when she was intercepted near the state line. The identification of the check was sufficient for its introduction.

Refusal of the following instruction is complained of:

"You are instructed, gentlemen of the jury, that a conviction of the crime of rape cannot be had upon the testimony of the prosecutrix alone, unless the circumstances surrounding the commission of the offense are clearly...

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