State v. Tope
| Decision Date | 26 December 1963 |
| Docket Number | No. 9163,9163 |
| Citation | 387 P.2d 888,86 Idaho 462 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Emerson M. TOPE, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Henry F. Reed, Kent Power, Boise, for appellant.
Allan G. Shepard, Atty. Gen., R. La Var Marsh, Asst. Atty. Gen., Harold A. Ranquist, Louis H. Cosho, Boise, for respondent.
Appellant-defendant was charged with and convicted of the crime of lewd and lascivious conduct with a minor female under the age of 16 years, in violation of I.C. § 18-6607. From a judgment of conviction this appeal is taken.
Appellant contends that there was no corroboration of the act of lewd and lascivious conduct or that appellant committed such act; that the court erroneously instructed the jury, after reporting that they had been unable to agree on a verdict.
We shall first consider appellant's contention that there was a lack of corroboration of the testimony of the complaining witness. In State v. Madrid, 74 Idaho 200, 259 P.2d 1044, this court stated:
'In harmony with the declared public policy of this state with reference to the necessity of corroboration of testimony of the complaining witness in such sex crimes, we hold that the testimony of the prosecuting witness in the prosecution for lewd and lascivious acts must be corroborated either by direct evidence or evidence of surrounding circumstances which clearly corroborate the statements of the complaining witness under the rule as laid down in the case of State v. Elsen, supra [68 Idaho 50, 187 P.2d 976], in order that a conviction under the act may be sustained.'
The rule above referred to as having been laid down in the case of State v. Elsen, 68 Idaho 50, 187 P.2d 976, is therein stated as follows:
* * *
It should be here noted that the rule quoted from the Elsen case has been modified to the extent that the majority of the court in State v. Madrid, supra, held that the general reputation of the victim's lack of chastity is not grounds for impeachment and is immaterial to the issues. In the instant case the prosecutrix, Shirley Swett, was only 10 years of age and her character or reputation for truth and chastity was in no respect impeached nor was her testimony contradictory or inconsistent with any admitted facts of the case. Under these circumstances the testimony of the prosecuting witness may be corroborated by direct evidence or evidence of surrounding circumstances.
The prosecutrix testified that between 12:30 and 1:00 o'clock p. m. on August 2, 1961, she and her two brothers left their home to go to a swimming pool on Elk Creek near Idaho City; while she was at the swimming pool appellant arrived and inquired regarding the water and 'just sat around there' for awhile; later he gave the prosecutrix and others some white and brown coconut balls of candy; shortly thereafter appellant said 'he was going to go put on his swimming suit and took off'; that the next time she saw him she and her brother Wayne (8 years of age) were on their way home when he came out of the bushes and asked if she wanted to go over to a little pool; when she replied that she didn't want to go he (appellant) grabbed them (Shirley and her brother Wayne) and carried them into some bushes; that he then made them lie down and while gesturing with his fist told them: 'If you don't mind me I will hurt you.' That he jerked her blouse off and ripped it, and also took off her other clothing, following which he exposed himself and engaged in lewd and lascivious acts; that as soon as appellant left she went directly home, arriving at approximately five minutes past 3:00 p. m., and told her mother what had happened.
The prosecutrix further testified that appellant was wearing an orange-colored shirt and dressy gray pants and green tennis shoes; that she saw appellant's automobile and described it as a bluish-gray station wagon trimmed in white.
Mrs. June Swett, mother of the prosecutrix, testified that her daughter Shirley arrived home at about 3:00 p. m. on the afternoon of August 2, 1961, at which time she was very upset and had a terrified look on her face; that she cried while telling what had happened to her.
Mrs. Swett further testified that when her daughter Shirley left home to go swimming on that day she wore a pair of shorts and a little blouse over her swimming suit; that her blouse, at the time she left to go swimming, was in good condition, not torn and the buttons were all on it. The blouse was admitted in evidence as State's Exhibit No. 7. Mrs. Swett also testified that after hearing the child's story she promptly contacted the sheriff.
Mr. John W. Williams, Sheriff of Boise County, testified that he received a call from Mrs. June Swett at approximately 3:15 p. m. on August 2, 1961, and that he immediately went to the Swett home where he talked with Shirley; that Shirley at that time was wearing the blouse identified as State's Exhibit No. 7, which was on that day turned over to the sheriff, in whose possession it remained until the trial. Said blouse was torn in two places, under the right armhole and in the back. The lower three of the five brass buttons which were on the front of the blouse were missing from the garment. The remaining two buttons were sewn on with white thread.
Mr. Williams further testified that after talking with Shirley he, in company with Shirley, went to a point on Highway No. 21 where he examined the area for automobile tracks; that he then went to a place on Elk Creek which is approximately 150 yards from the swimming pool towards Idaho City, and in an area of willows and brush and a little grass he there observed that the grass and weeds 'were matted down as if somebody had been sitting or rolling in that area'; that he there found three buttons (admitted as State's Exhibit No. 2), which are identical to the two remaining buttons on Shirley's blouse, each containing some white thread in the eyelets.
After examining said area the sheriff immediately took Shirley to St. Luke's Hospital where she was examined by Dr. Robert Holdren, whose professional qualifications were admitted. The doctor testified regarding his examination of her as follows:
'Q did you examine her?
'A Yes.
'Q Would you give us your findings?
'A I examined her specifically with reference to female genital organs at which time I found reddening and evidence of irritation of the external genital organs, there was no bleeding at the vaginal orifice but there was evidence of irritation.
'Q Caused by trauma, doctor?
'A...
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