State v. Thomas
| Decision Date | 06 March 1928 |
| Docket Number | 1393 |
| Parties | STATE v. THOMAS [*] |
| Court | Wyoming Supreme Court |
APPEAL from District Court, Uinta County; JOHN R. ARNOLD, Judge.
John Thomas was convicted of statutory rape, and he appeals.
Reversed and Remanded.
Louis Kabell, Jr., and M. A. Kline, for appellant.
The verdict is against the weight of evidence and contrary to law; Tway v. State, 7 Wyo. 74; 33 Cyc. 1497; the cause should be reversed because of the improbability of the story of the prosecuting witness; State v. Cowing (Minn.) 108 N.W. 851; Matthews v. State (Nebr.) 27 N.W. 234; Morris v. State (Okla.) 131 P. 731; State v. Trego (Idaho) 138 P. 1124; Keller v People (Ill.) 71 N.E. 389. The story of the prosecutrix is surrounded by all the facts and circumstances; the witness Virginia Megeath was not called by the prosecution apparently because she had knowledge of facts disproving statements of the prosecutrix; where circumstances discredit the evidence of prosecutrix, the cause will be reversed, Harvey v Comm. (Va.) 49 S.E. 481; State v. Connolly (Minn.) 59 N.W. 479. Counsel for prosecution was guilty of misconduct in the conduct of the trial, Rosencrance v State, (Wyo.) 239 P. 952; State v. Wilson (Wyo.) 228 P. 803; State v. Ferguson (S. D.) 204 N.W. 652; Miller v. People (Colo.) 201 P. 41; Rogers v. State (Okla.) 127 P. 803; State v. Irwin, (Idaho) 71 P. 608; 22 R. C. L. 104; Campbell v. State, (Ala.) 97 So. 783. The reference to the resemblance of the child involved, to the defendant was erroneous, State v. Neel, (Utah) 65 P. 494; it was also error to receive evidence of other offenses committed by defendant, Fields v. Territory, 1 Wyo. 78; State v. Lowry, 29 Wyo. 251, 626; State v. Wells, 29 Wyo. 335; the trial court erred in giving Instruction No. 9, which was clearly prejudicial to the defendant; Instruction No. 12 was outside the issues; the court erred in refusing requested Instructions Nos. 1, 3 and 6, State v. Blackburn (Ia.) 114 N.W. 531.
W. O. Wilson, Attorney General, and J. A. Greenwood, Deputy Attorney General, for respondent, (David J. Howell, former Attorney General, and John C. Pickett, former Assistant Attorney General, on the briefs.)
The case of Tway v. State, 7 Wyo. 74 is not in point on the ground that no evidence of force was shown, which was a material element in that case: in the case at bar the prosecutrix is under 18 years of age and the element of force is immaterial, 7080 C. S. 1920; Ross v. State, 16 Wyo. 285; the Tway case is not in point; the facts stated with reference to misconduct of the assistant prosecuting attorney during the trial do not seem to be of sufficient importance to justify a reversal of the case, Ross v. State, supra; Smith v. State, 17 Wyo. 481; Daniels v. Township, 99 A. 475; State v. Sorrentino, 31 Wyo. 129; defendant did not ask the court to instruct the jury to disregard the remarks of the prosecutrix' counsel which were objected to, Cochran v. Gretman, (Idaho) 203 P. 289; 16 C. J. 826. Ordinary evidence used at preliminary hearing cannot be used upon the trial of the case, unless the witness cannot be at the trial, 16 C. J. 839; the birth of a child may be shown as evidence in a case of this kind; 33 Cyc. 1476; State v. Kipers, (Kans.) 201 P. 68; the rule is that evidence of other acts of intercourse with prosecutrix is admissible, 22 R. C. L. 1205; State v. Tetrault, 95 A. 669; Williams v. State, 246 S.W. 503; Instruction No. 9 is supported by the rule in State v. Tobin, 31 Wyo. 355; rulings of trial court refusing instructions, are supported by cases cited in the brief.
The defendant and appellant, John Thomas, was tried and convicted in the District Court of Uinta County, Wyoming, of the crime of statutory rape. The cause is before this court on direct appeal.
There appears to be very little controversy concerning the circumstances under which it is claimed that the alleged crime occurred. The record discloses that on or about the 6th day of June, 1924, the defendant, in company with the prosecuting witness and several other young people, went to a dance at the Robertson schoolhouse in Uinta County, Wyoming. The trip was made from their homes in Mountain View to the place where the dance was held, a distance of several miles, by means of an automobile. At the conclusion of the first dance after supper, which seems to have been served between twelve and one o'clock that night, defendant and prosecutrix left the dance-hall, the former wearing a heavy fur coat, buttoned around him, and the latter also putting on and wearing her coat. The night was chilly, as a light snow fell during the course of it. A number of cars were parked on the east side of the schoolhouse, with the seats of the cars facing the building, two of these being open touring cars, without side curtains, and located close together, so that there was just room to walk between them.
The east side of the school building was at this place about twenty feet in length. Five windows, three feet by five feet in size, with only the casing between them, were located in that side of the building. Their lower sills were about eight feet from the ground outside and between two and three feet from the floor of the room inside, where the dance was held. A piano stood near the windows, and on it was a 300-candle-power gas lamp, which shed its light through the windows and made it possible from the dance room to see the cars and people in them.
One of the open touring cars above mentioned was a Dodge, and in its back seat, when defendant and prosecutrix came out, were her sister and her escort, Kenneth Davis. The other open car next to it was a Buick, and after obtaining a quilt from the parties in the Dodge car, defendant and prosecuting witness placed themselves in its rear seat. The prosecutrix testified that she and defendant wrapped themselves in the quilt; the defendant stating that she alone used it. Not far from the other side of the Buick car, to the north, was a Ford car, which was being repaired by two young men who had also come to attend the dance. They used no light for their work except what came through the schoolhouse windows, and they appear to have been engaged on the car a large part of the time defendant and prosecutrix were sitting in the Buick car's rear seat.
There were but four dances had after supper, two of them lasting about twenty minutes. At the end of the second dance Charles Thomas, a brother of defendant, left the dance room, came out and started the engine in order to warm up the radiator of the Buick car; he sat and talked with defendant and prosecutrix until the last dance commenced, when he went in and danced that. The men were working on the Ford car, he testified, when he came out, and also when he left to go in to dance. Davis and prosecutrix' sister were in the adjacent Dodge car during the entire time defendant and prosecutrix were in the Buick car, after supper and before leaving for home. Prosecutrix testified that defendant had sexual intercourse with her while they were on the back seat of the Buick car, wrapped up in the quilt, with their coats on, and with the other conditions prevailing as above detailed. While on the witness stand she gave no particulars as to the position of the parties during the sexual act, nor whether it was before or after defendant's brother came out to warm up the engine of the car. Prosecutrix also testified to having had sexual intercourse with defendant a month or so previously, the exact time she could not state. A child was born to her about February 27, 1925, she claiming defendant to be the father. Her brother, called as a witness for the state, related some alleged admissions of defendant to the effect that he was guilty of the crime charged. Defendant denied having had sexual intercourse with prosecutrix and denied being the father of her child.
This brief outline of the record touching the commission of the alleged offense shows, with reasonable clearness, the nature of the case and that it is one where strongly conflicting arguments and conclusions could be easily entertained by the jury as to the guilt or innocence of the defendant. Such a situation demanded the utmost fairness and impartiality in the course of the trial on the part of the court and counsel for the state and defendant alike.
In the record it appears that counsel for the state moved to strike out, as hearsay, an answer of the witness he was cross examining, and thereupon the record proceeds verbatim as follows:
This action of the court in declining to make the remarks of state's counsel directed at the defendant, who was then on the witness stand, a part of the record being thus excepted to, is assigned as error, and the point is argued in appellant's brief.
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