State v. Traufer

• Citation: 97 P.2d 336,109 Mont. 275
• Decision Date: 04 November 1939
• Docket Number: 7948.
• Parties: STATE v. TRAUFER.
• Court: United States State Supreme Court of Montana

97 P.2d 336

109 Mont. 275

STATE v. TRAUFER.

No. 7948.

Supreme Court of Montana

November 4, 1939

Rehearing Denied Jan. 5, 1940.

Appeal from First District Court, Lewis & Clark County; Hon. A. J Horsky, Judge.

Versal B. Traufer was convicted of rape and he appeals.

Affirmed.

Stanley R. Foot and Arthur Acher, both of Helena, for appellant.

Harrison J. Freebourn, Mark Derr, Harold K. Anderson, and Floyd O Small, all of Helena, for respondent.

ARNOLD Justice.

The defendant was convicted by a jury in the district court of Lewis and Clark county on December 9, 1938, of the crime of rape committed by having intercourse with a female person under the age of eighteen years, she being of the age of fifteen at the time of the alleged act. The jury fixed punishment at two years in the state prison, on which verdict judgment and sentence were pronounced on December 14, 1938. The defendant appealed from the judgment.

No objections were offered to any of the instructions given, and hence there is no issue on this appeal as to the law of the case. The defendant made several assignments of error which may be embraced under two or three heads. First, that the corpus delicti had not been proven, and, second, that the court erred in permitting certain witnesses to testify as to what other witnesses in the case had told them with reference to the alleged crime. Third, that the court erred in failing to advise the jury to return a verdict of not guilty, and in rendering judgment upon the verdict upon the ground that there was no substantial evidence to support the verdict. Therefore, it is necessary only to review the evidence to determine whether or not the assignments of error are well taken.

The complaint was signed by Arthur F. McDonnell, father of Agnes McDonnell, the girl involved in the case. He testified that his daughter, who was a student at the Cathedral High School in Helena, had left her home in the town of East Helena on October 21, 1938, that being Friday, ostensibly to go to school. He had given her permission to go to a show that night after school with a girl friend. She failed to return home after the show and the next day in the afternoon telephoned her father that she would not be home. She refused to tell him where she was and, being unable to locate her, he enlisted the aid of the police for that purpose. After being found on Monday, October 24th, she was taken by the officers from the automobile of the defendant while they were driving down a street in Helena. The father was notified and called at the office of the county attorney, where he signed the complaint against the defendant.

At the conclusion of his testimony the daughter Agnes was called. After preliminary questions and answers, she stated that on Friday, October 21st, as she was about to take a bus to school, the defendant drove up in his car in East Helena whereupon she got in. He took her to a Mrs. Armstrong's apartment in Helena where she stayed until Monday, not going to school at anytime after being picked up. She stated that she stayed with the defendant Traufer and slept with Mrs. Armstrong, and that Traufer slept with a boarder of Mrs. Armstrong by the name of Jack Jacks. She stated on direct examination that she did not have intercourse with the defendant during that time. At this juncture, at the request of the county attorney, the court granted him permission to cross-examine the witness upon his representation that she had made prior contradictory statements, and for the further reason that she showed a friendly attitude toward defendant and a hostile one toward the state. In such cross-examination she was asked if she had made a statement when taken before Frank Thefault, Probation Officer, and Floyd Small, Deputy County Attorney, to the effect that she had had sexual intercourse with the defendant. She answered, "I don't remember exactly. I was highly nervous and might have said most anything." Further on in her testimony concerning the making of such prior admission she said: "Yes, I believe I did." On cross-examination by counsel for the defendant on the same subject, she said: "I wasn't telling the truth. I don't believe I knew what I was saying at that time. I got excited. I am not sure what reason, if any, I had for making a statement like that in the presence of those two men. I didn't fully understand their questions when they asked me. At this time I want to tell this court and jury there was no act of sexual intercourse between me and the defendant."

Thereupon Dorothy Armstrong, a witness for the state, was called. The evidence developed that she was a married woman nineteen years old, the mother of a baby, living in a three-room apartment, her husband having previously left her; that living in the apartment was a male boarder by the name of Jack Jacks. She likewise testified that she had gone to East Helena with Traufer at his invitation and had brought Agnes McDonnell to her apartment, and that Traufer stayed at her place from the time Agnes arrived until Monday, having never previously stayed there; that Agnes slept with her and that the defendant slept with the boarder, Jacks. Thereupon the same procedure was had as in the case of Agnes McDonnell, the court granting the county attorney permission to cross-examine his own witness for the reasons previously mentioned. She was asked if she recalled on that day shortly before the hearing she had stated in the presence of the county attorney and Mr. Small that the defendant Traufer, Agnes McDonnell and herself had slept in the same bed between October 21st and October 23rd. In answer she stated that that was in the affidavit she had signed, but "I didn't know just exactly what I was signing at the time I signed it. I signed a statement to that effect earlier but I was rather excited when I signed it." She further stated that she might have told the county attorney in his office "just a few minutes ago"--just before the case opened--that that was true and she was going to tell the jury those things. She reaffirmed other matters upon questions as to whether she had previously made such statements in regard to picking up Agnes McDonnell and in regard to her stay at her apartment. She was then questioned as to a previous written statement reading as follows: "'Question. Then the three nights that Bill stayed there, Agnes, Bill and you slept in your bed? Answer, Yes, in my bed.' Is that correct?" To which she answered, "I don't know. It could be correct, I don't recall. I don't recall."

As to other contradictory statements the following questions from her previously signed statement were read to her: "You say that to your knowledge, at least once on each of these nights Bill and Agnes had intercourse, and you answered, 'yes, that is right. As far as I know that is all, but I know that it was at least one.' Was that correct? Answer: No. Question. Is that the statement you made? Answer: No, it wasn't three nights. Question: It wasn't three nights. Answer: I can't remember now. No, I didn't see them. Question: What would you say at this time, though. Answer: I don't know exactly. I know what I would do if I were sleeping with someone. Question: She was sleeping with him then; is that the point? Answer: Not exactly, no. Question: Not exactly, what do you mean? Answer: She was staying with him, but not sleeping with him. Question: But you said so in my office, didn't you? Answer: Yes, I did."

Referring again to the statement which the witness had previously signed, concerning her objection to crowded sleeping arrangements, the county attorney on cross-examination asked her: "Do you recall whether or not you answered the question at that time? 'Well, I didn't object on the first two nights, but I told her if this was going to continue she would have to fix some other arrangements as none of us were getting much sleep, and it was quite crowded and that he would have to go home or he would have to sleep with Jack.' Is that what you said at that time? Answer: I don't know exactly whether I did or not. Question: That is what it says here. Answer: When I signed that I was all excited and messed up." She admitted that there had been drinking of liquor in her apartment while Agnes McDonnell was there with the defendant.

Floyd O. Small thereupon took the stand and testified that he was the deputy county attorney and had investigated the defendant's case, discussing it with Agnes McDonnell on Monday, October 24th, in the presence of Frank Thefault, Probation Officer, right after she was picked up from defendant's automobile; that she stated then she had had intercourse with defendant; that at the time defendant under no offer or inducements or threats or promises voluntarily told him in answer to a question that he had had sexual intercourse with the girl, Agnes McDonnell, in the Armstrong home and also in his automobile. He also told the deputy county attorney that he and the McDonnell girl and Dorothy Armstrong slept in one bed.

Frank Thefault was thereafter called as a witness for the state and testified he was the Probation Officer, and that Agnes McDonnell told him in the presence of Mr. Small in the county attorney's office, that she had had sexual intercourse with the defendant. He further corroborated the statements of Small as to the confession of the defendant that he had had intercourse with Agnes McDonnell, adding that the defendant also stated that he had used a contraceptive.

Thereafter the defendant took the stand and admitted that he had been introduced to Agnes McDonnell about a month previous to the time he picked her up in East Helena, and further admitted that he went to East Helena and picked her up and brought her to the apartment of Dorothy Armstrong. He stated...