State v. Tope
| Citation | 387 P.2d 888,86 Idaho 462 |
| Decision Date | 26 December 1963 |
| Docket Number | No. 9163,9163 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Emerson M. TOPE, Defendant-Appellant. |
| Court | United States State Supreme Court of Idaho |
Page 888
v.
Emerson M. TOPE, Defendant-Appellant.
[86 Idaho 463]
Page 889
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.
[86 Idaho 464] KNUDSON, Chief Justice.
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:
* * * 'If the character or reputation of the prosecutrix for truth and chastity is unimpeached, and her testimony is not contradictory nor inconsistent
Page 890
with the admitted facts of the case, and is not inherently improbable nor incredible, there can be either direct evidence corroborating her testimony, or evidence of surrounding circumstances clearly corroborating her statements. Either will suffice. If, however, her character or reputation for truth and chastity, or either, is impeached, or her testimony is contradictory[86 Idaho 465] or is inconsistent with the admitted facts of the case, or is inherently improbable or incredible, then there must be direct evidence corroborating her testimony.'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...
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State v. Aragon, 14771
...be assumed that the jury gave due consideration to the whole charge, and was not misled by any isolated portion thereof. State v. Tope, 86 Idaho 462, 387 P.2d 888. Certainly it is a correct statement of the law that the jury instructions should be considered as a whole but it must be conclu......
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State v. Johns, 16251
...204 (1983); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Stevens, 93 Idaho 48, 454 P.2d 945 (1969); State v. Tope, 86 Idaho 462, 387 P.2d 888 (1963). We affirm the district court's denial of Johns' proposed jury Next, Johns argues that the district court erred in enhanci......
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State v. Lankford, s. 15760
...be assumed that the jury gave due consideration to the whole charge and was not misled by any isolated portion thereof. State v. Tope, 86 Idaho 462, 387 P.2d 888 (1963). After reviewing the record we find that the instructions, either individually or as a whole, were not in error. We will d......
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State v. Carter, 13040
...or part thereof which may be objectionable when not considered in connection with the instructions as a whole ...." State v. Tope, 86 Idaho 462, 469, 387 P.2d 888, 892 (1963). In the present case, the questioned instruction was confusing and erroneous. Reading the instructions in their enti......