State v. Smith

• Decision Date: 25 November 1936
• Docket Number: 5749
• Citation: 90 Utah 482,62 P.2d 1110
• Court: Utah Supreme Court
• Parties: STATE v. SMITH

62 P.2d 1110

90 Utah 482

STATE v. SMITH

No. 5749

Supreme Court of Utah

November 25, 1936

Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.

Dr. H J. Smith was convicted for assault with intent to commit rape, and he appeals.

CONVICTION SET ASIDE, AND CAUSE REMANDED, with directions to grant new trial.

B. E Roberts, of Salt Lake City, and Fred R. Morgan, of Murray for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

FOLLAND, Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

FOLLAND, Justice.

Defendant was charged by the information of the district attorney of the Third judicial district with the crime of statutory rape; that is, sexual intercourse with a girl under the age of thirteen years. He was convicted by the jury of the crime of assault with intent to commit rape. He appeals and assigns numerous errors. It will serve no useful purpose to recite the facts testified to by the witnesses. The evidence for the State tended to prove the commission of the completed crime of rape as charged. The testimony offered by the defendant was in direct conflict with that of the State and tended to prove that the charged crime had not been and could not have been committed by him.

Error is assigned to the court's refusal to permit counsel for appellant to interrogate the prosecuting witness on cross-examination, as to whether she had suffered or indulged in acts of sexual intercourse prior to the one she testified had been committed by appellant. Previous illicit intercourse constitutes no defense and furnishes no ground for justification or excuse. The law condemns an act of intercourse with a female under thirteen years of age whether accomplished with or without her actual consent, because in law she cannot consent, and regardless of her previous chastity or lack of chastity. State v. Hilberg, 22 Utah 27, 61 P. 215; 22 R. C. L. 1211. The purpose of the cross-examination, as announced by counsel, was to test credibility and to show motive. The general rule is that a prosecutrix of such age may not be cross-examined as to previous acts of intercourse for the purpose of testing her credibility as a witness. Note, 65 A. L. R. 425; note, 48 L. R. A. (N. S.) 272. This court has recognized this rule, although not squarely deciding that question. State v. Scott, 55 Utah 553, 188 P. 860, 865; State v. Hanna, 81 Utah 583, 21 P.2d 537. In cases of rape where prosecutrix is over the age of consent, her bad reputation for chastity is a proper matter for consideration of the jury as affecting her credibility and as bearing on the probability of consent. State v. McCune, 16 Utah 170, 51 P. 818; 1 Wharton's Crim. Evid. 481. On the other hand, in cases of statutory rape evidence of prior loose conduct of prosecutrix as tending to show consent is immaterial. The law says she cannot consent. State v. Newman, 88 Mont. 558, 294 P. 377; State v. Duncan, 82 Mont. 170, 266 P. 400; State v. McPadden, 150 Minn. 62, 184 N.W. 568; State v. Dowell, 47 Idaho 457, 276 P. 39, 68 A. L. R. 1061. In some jurisdictions the courts hold that the prosecuting witness may be examined as to previous acts of immorality on her part as affecting her credibility as a witness. Note, 65 A. L. R. 426; State v. Apley, 25 N.D. 298, 141 N.W. 740, 48 L. R. A. (N. S.) 269; State v. Johnson, 129 Kan. 207, 282 P. 723; Rowe v. State, 155 Ark. 419, 244 S.W. 463. There are grounds for distinction between examination of a prosecutrix as to previous conduct showing her to be a common prostitute and merely as to isolated acts of intercourse. The former conduct would indicate a low state of morals and affect credibility as a witness, while isolated acts might have no such bearing. Hastings v. State, 119 Tex. Crim. 507, 43 S.W.2d 113.

Where the State, as in this case, relies not merely on the testimony of the prosecutrix respecting the particular act constituting the offense, but introduces expert medical testimony tending to show that an act of sexual intercourse has been committed, thereby tending to corroborate the prosecutrix by testimony from which an inference may be falsely drawn that defendant committed the act, then it would be proper to permit defendant to introduce evidence tending to show that the prosecutrix had previously had sexual intercourse with others. Such evidence would negative any inference of defendant's guilt to be drawn from the testimony alone of the medical expert. This doctrine will be referred to later in discussing the ruling wherein the court restricted cross-examination of the medical witness, but is no aid in passing on the objection to the cross-examination of the prosecutrix for the reason that she was the first witness in the case and at the time of her cross-examination the medical testimony had not been given. State v. Pettit, 33 Idaho 326, 193 P. 1015. No attempt was made to elicit this kind of testimony from the prosecuting witness after the introduction of the medical testimony.

Appellant contends he is entitled to show other acts of intercourse as bearing on motive; that is, that the prosecutrix made the accusation against him in order to shield others. If this could be proved, it would be proper to do so. In the case of State v. Scott, supra, it was said:

"It was the theory of counsel for the defendant, however, that the prosecutrix in this case had had intercourse with the individual heretofore referred to; that she tried, but was unable, to see such individual, and that for that reason and in order to shield herself in view of her supposed pregnancy she wrongfully charged the defendant with the offense. No doubt if such were the case the defendant would have the right to prove by her on cross-examination, if he could, that such was her purpose in lodging the complaint against the defendant, and, in order to establish the fact, he no doubt would be permitted to prove that she had had intercourse with the individual aforesaid. Under such circumstances it is always proper to show the motives of the prosecuting witness, and, if such be the fact, that she is wrongfully accusing the defendant either to shield herself or to shield another. 33 Cyc. 1454, 1455; Shoemaker v. State, 58 Tex. Crim. 518, 126 S.W. 887." However, at the time the question was asked there was not anything in the record on which any such claim could be based. The prosecutrix had been asked if she knew certain boys whose names were propounded to her and she had answered in the negative.

One fact testified to by the prosecutrix might tend to lend color to the suspicion that she might have made the accusation against defendant in order to shield someone else. No complaint by the prosecutrix had been made to her mother or any officer concerning the claimed assault by defendant until more than a month later, when she had been taken into custody, for some reason not disclosed by the evidence by the truant officer of the school, whereupon she made the accusation that the defendant had intercourse with her about a month previous thereto.

In cases of this kind where the conviction of a defendant may rest alone on the uncorroborated testimony of the prosecutrix, the court should allow the greatest latitude in cross-examination for the purpose of eliciting any fact which would affect credibility, show improper motive, or in any way aid the jury in determining whom it will believe. State v. Hilberg, supra; State v. Warner, 79 Utah 510, 13 P.2d 317; 70 C. J. 680. Mr. Wigmore, in his excellent work on Evidence (1934), Supp. to Second Ed., p. 180, says:

"The prudence and the necessity of examining thoroughly the past conduct of the woman-complainant in such cases, in order to protect the accused against false charges, is now amply understood by the medical profession, and should be conceded by the law of Evidence."

See, also, pages 379 to 388, ibid.

In this case the defendant took the witness stand and denied having had sexual relations with the young girl. As to the specific act, her testimony stands alone against his. Each is corroborated respecting other matters. As to the fact of intercourse the only corroboration of the prosecutrix is that of a medical expert, Dr. R. J. Alexander, a physician who examined her a month and ten days after the alleged intercourse by defendant. Dr. Alexander testified that the hymen had been broken and that the vagina was "unusual" for a girl of her age and that in his opinion the condition found indicated she had had intercourse. The defendant on cross-examination sought to elicit from the doctor his opinion as to whether the condition found indicated more than one intercourse. Objection by the State was sustained and the defendant restricted in his cross-examination. Appellant relies on the doctrine above stated that where the State introduces medical testimony tending to show that an act of intercourse has been committed with prosecutrix, the defendant may introduce evidence of intercourse with others to negative the medical testimony as pointing to the guilt of defendant because of the false inference which might arise therefrom. State v. Pettit, supra; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Apley, supra; State v. Paddock, 86 Mont. 569, 284 P. 549. The rule is stated in 22 R. C. L. 1211, as follows:

"There is, however, authority to the effect that the evidence introduced by the prosecution may be such as to make evidence of prior intercourse or prior unchastity admissible. Thus where the prosecution proves by physicians that the prosecutrix had had sexual intercourse, it has been held that it is permissible for the defendant to introduce evidence of a bad reputation for chastity or prior acts...