State v. Stevens

• Decision Date: 06 September 1946
• Docket Number: 8618.
• Citation: 172 P.2d 299,119 Mont. 169
• Parties: STATE v. STEVENS.
• Court: Montana Supreme Court

172 P.2d 299

119 Mont. 169

STATE v. STEVENS.

No. 8618.

Supreme Court of Montana

September 6, 1946

Appeal from District Court, Tenth District, Judith Basin County Stewart McConochie, Judge.

Theodore Stevens was convicted of statutory rape, and he appeals.

Affirmed.

Swanberg & Swanberg and E. J. Stromnes, all of Great Falls, for appellant.

R. V Bottomly, Atty. Gen., Alfred F. Dougherty, Asst. Atty. Gen J. E. McKenna, of Lewistown, H. O. Vralsted, of Helena, and Paul J. Murphy, of Stanford, for respondent.

LINDQUIST Chief Justice.

Appeal from judgment on conviction of crime of rape.

The information charges:

'Theodore Stevens, is accused by the County Attorney of Judith Basin County, Montana, by this information, of the crime of rape committed as follows, to-wit:

'That at the County of Judith Basin, in the State of Montana, on or about the 15th day of December, A.D.1944, and before the filing of this information the said Theodore Stevens, did then and there wilfully, unlawfully and feloniously make an assault upon (the prosecuting witness), a female child under the age of eighteen years, to-wit, of the age of seventeen years, who was not then and there the wife of the said Theodore Stevens, and did then and there ravish and carnally know and accomplish with her an act of sexual intercourse.'

Defendant was the step-father of the prosecuting witness.

Before resting its case, the state elected the date on or about the first day of November, 1944, as the date on which the alleged crime was committed.

The jury found defendant guilty and left the fixing of the penalty to the court and the court sentenced the defendant to the state penitentiary for a term of tweleve and a half years.

The state has filed a motion to strike the defendant's bill of exceptions on certain alleged grounds. We have considered the motion, find it without merit and it is therefore denied.

Defendant claims 32 specifications of error.

Specification of error No. 1, the defendant contends that the court abused its discretion in denying the defendant's motion of June 4, 1945, for a continuation of trial. We find no error on the part of the trial court in denying the motion.

As to defendant's specification of error No. 2, the court did not err in overruling the demurrer to the information. It clearly appears from the reading of the information that the defendant was charged with only one crime--the crime of statutory rape. 'If the prosecutrix was under the age of 16 years [now 18 years] when the defendant carnally knew her, the defendant is guilty. Whether she submitted with or without resistance, or even solicited his embrances, is immaterial, except, perhaps, as bearing upon the extent of the punishment to be imposed, and the allegation that the act was done violently and against her will, not being descriptive, may be rejected as surplusage.' State v. Mahoney, 1900, 24 Mont. 281, 285, 61 P. 647, 648.

Considering defendant's specification of error No. 3, the court did not err in requiring the defendant to plead to the information in the absence of counsel. The court had extended additional time in the matter of the demurrer and plea, and the demurrer of the defendant having been overruled, the time for entering plea having arrived and the defendant standing mute, the court entered a plea of not guilty for and on behalf of the defendant in conformity with section 11915, Revised Codes, reading: 'If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered.'

Considering defendant's specification of error No. 4, the court did not err or abuse its discretion in denying defendant's second motion of July 10, 1945, for a continuation of trial until August, and it is to be noted that the court re-set the case for trial from July 10, 1945, to July 17, 1945. Such matters rest in the sound discretion of the trial court.

Defendant's specifications of error Nos. 5 and 6 have to do with questions asked by the county attorney of two prospective jurors as to whether they knew or were acquainted with George Van Nortwick during his lifetime. Though the deceased was the father of the prosecutrix, we fail to see that the question would be prejudicial to the defendant.

Under specification of error No. 7, defendant claims error on the trial court's ruling on the following questions asked the prosecutrix on cross-examination:

'Q. You knew of course, that there was some talk going around Judith Basin County that Mr. Stevens only married your mother to get her money? A. That's right.

'Mr. Vralsted: Object to that, not proper examination.

'Court. Sustained.

'Q. You knew that there were other people didn't like the defendant, as well as yourself, didn't you?

'Mr. Vralsted: Object to that, not cross-examination.

'Court: Sustain the objection.'

It is to be noted that the first question was answered before the objection and ruling, and the court did not err in sustaining the objections.

Under specifications of error Nos. 8, 9, 10, 11 and 12, appellant assigns error in the trial court's sustaining objections of the county attorney to the following questions asked the prosecuting witness on cross-examination and in denying defendant's offer of proof on the matters inquired about and related subjects:

'Q. Did he tell you that under the law of Montana if you were found guilty of being a juvenile delinquent that you could be sentenced? A. No, he didn't.

'Q. That was not even brought up for discussion, was it?

'Mr. Vralsted: Objected to.

'Court. At this time the objction is sustained, if the question has not been answered.

'Q. You weren't afraid of them? You were not afraid they were going to put you in the institution for wayward girls?

'Mr. Vralsted: We renew the objection previously made.

'Court: Sustained. Not proper cross-examination, in the opinion of the court.

'Q. The statement purported to be a resume of all the occurrences you have testified heretofore on direct examination, with Mr. Stevens?

'Mr. Vralsted: We make the objection this is not cross-examination, incompetent, irrelevant and immaterial. This girl is not on trial.

'Court: Objection sustained.

'Q. You have not been there at Lewistown of your own free will, have you?

'Mr. Vralsted: Object to that on the same grounds.

'Court: At this time the objection is sustained.'

An examination of the record shows that on these questions and the subjects contained in the defendant's offer of proof the following testimony was given by the prosecutrix, on cross-examination:

'Q. As a matter of fact, didn't somebody over there, either Bailey or Grady, tell you were a juvenile delinquent, and that you could be sent to an institution here in Montana? A. No, he didn't.

'Q. They never told you that? A. I just took it for granted I was a juvenile delinquent because I am under age.

'Q. You took it for granted? You didn't ask Mr. Bailey about it, did you? A. Yes, I asked him several things about it.

'Q. He was there questioning you with reference to the possibility you were a juvenile delinquent, wasn't he? A. He questioned me as to what I had to do with Mike.

'Q. How did he know anything about Mike? A. He didn't until I told him.

'Q. Did he tell you that, under the law of Montana, if you were found guilty of being a juvenile delinquent that you could be sentenced? A. No, he didn't.

'Q. Now, as the result of the conversation you had with Mr. Bailey and Mr. Grady, you were somewhat nervous and frightened, were you not? A. No, not exactly.

'Q. You weren't afraid of anything? A. I wasn't afraid of them.

'Q. Isn't it true, Jean, that on one of those occasions when talking with her (prosecutrix' mother) you told her punishment was going to be given to you or to the defendant? A. I think I did. * * *

'Q. And of course you talked about many other matters, too, didn't you? A. A few.

'Q. Isn't it true the reason you told your mother that was because the Prohibition Officer had told you before this that if you testified in this case against the defendant, that they would turn you loose? A. No, he didn't.

'Q. They never told you that? A. No.

'Q. Now then, after you signed the statement you say you did down in Great Falls before the police officers, isn't it true, after you got up here to Stanford and started talking to the County Attorney, that you were afraid to change your story? A. No.

'Q. Didn't they tell you up here that you had already signed a confession of all these events, that you couldn't back out if you wanted to? A. No, they didn't.

'Q. As a matter of fact, Mr. McKenna told you in what manner to testify up here, didn't he? A. Told me to tell the truth.

'Q. He didn't tell you the exact words to say or use, did he? A. No, he didn't.

'Q. You never went over the story with him then, did you? A. I went over it with him.

'Q. How many times? A. Several times.

'Q. Down there in Lewistown? A. Yes.

'Q. Yet you say he never coached you? A. He told me what to expect in Court.

'Q. Yet you now say he never coached you on how to say it? A. No, he didn't.'

If the trial court erred in sustaining the state's objections and we do not say that it did, the record discloses that the errors complained of by the defendant are erased by the defendant getting before the jury, before the trial was over, the evidence and testimony which he desired on these subjects. The defendant successfully presented to the jury evidence on the question of threats to the prosecutrix, evidence as to whether or not any immunity was offered prosecutrix, evidence as to whether or not anyone coached prosecutrix as to her testimony, evidence as to whether or not prosecutrix had made statements under fear or coercion, and...