State v. Trego

• Decision Date: 28 February 1914
• Citation: 25 Idaho 625,138 P. 1124
• Parties: STATE, Respondent, v. BYRD TREGO, Appellant
• Court: Idaho Supreme Court

138 P. 1124

25 Idaho 625

STATE, Respondent, v. BYRD TREGO, Appellant

Supreme Court of Idaho

February 28, 1914

RAPE-UNCORROBORATED TESTIMONY OF PROSECUTRIX-EVIDENCE-SUFFICIENCY OF-REJECTION OF-ADMISSION OF-INSTRUCTIONS.

1. Held, that the evidence is not sufficient to support the verdict.

2. Under the laws of this state, conviction for rape may be had upon the uncorroborated evidence of the prosecutrix; but when the evidence of such prosecutrix is of a contradictory nature or her reputation for truthfulness and veracity is impeached her testimony must be corroborated or the judgment will be set aside.

3. Where the testimony of a prosecutrix is contradictory or her reputation for truthfulness and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.

4. Under the provisions of sec. 6082, Rev. Codes, a witness may be impeached by a party against whom he is called by contradictory evidence or by evidence that his general reputation for truthfulness, honesty and integrity is bad.

5. Held, that the court erred in the rejection of certain evidence.

6. Held, that the court erred in the admission of certain evidence.

7. Held, that it is not error for the court to refuse to give an instruction requested by the defendant where the principles of law therein laid down are substantially covered by other instructions given.

APPEAL from the District Court of the Fifth Judicial District in and for Bingham County. Hon. J. M. Stevens, Judge.

The defendant was convicted of the crime of rape. Judgment reversed.

Judgment reversed and a new trial ordered.

Hansbrough & Gagon and Wm. A. Lee, for Appellant.

While a conviction for rape may be properly had upon the uncorroborated testimony of a prosecutrix, this would only be warranted when the reputation of the prosecutrix for chastity as well as for truth is unimpeached, and when the facts and circumstances surrounding the commission of the offense are in corroboration and not contradictory of the statements of the prosecutrix. (State v. Anderson, 6 Idaho 706 59 P. 180; Tway v. State, 7 Wyo. 74, 50 P. 188; People v. Wessel, 98 Cal. 352, 33 P. 216; State v. Donnington, 246 Mo. 343, 151 S.W. 975; State v Goodale, 210 Mo. 275, 109 S.W. 9; State v. Brown, 209 Mo. 413, 107 S.W. 1068; State v. Baker, 6 Idaho 496, 56 P. 81.)

If the evidence at the trial is contradictory of the evidence before a committing magistrate on a preliminary hearing, and the witness is uncorroborated in that respect, a verdict of guilty upon such evidence without corroboration cannot stand. (State v. Donnington, supra; Dickey v. State, 21 Tex. App. 430, 2 S.W. 809.)

Where the prosecutrix on a charge of rape is in no way corroborated and the defendant denies the charge and is corroborated in such denial, the uncorroborated testimony of the prosecutrix, standing alone, is insufficient to warrant a conviction. ( Sowers v. Territory, 6 Okla. 436, 50 P. 257; State v. Baker, 6 Idaho 496, 56 P. 81; State v. McMillan, 20 Mont. 407, 51 P. 827; People v. Hamilton, 46 Cal. 540; People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; People v. Ardaga, 51 Cal. 371; People v. Castro, 60 Cal. 118.)

In such case the court is warranted in assuming that the jury must have rendered the verdict under the influence of passion or prejudice. (State v. Baker, 6 Idaho 496, 56 P. 81.)

The court erred in refusing to give instruction requested by defendant, as by refusing to give the instruction he virtually told the jury that the evidence of the complaints proven to have been made by the prosecutrix might be considered by the jury in corroboration of her own testimony, and the court thereby refused to instruct the jury that a failure by the prosecutrix to immediately complain is looked upon as a suspicious circumstance, that her story is a fabrication; the court erred also in failing to instruct the jury that the testimony of said complaints was admitted for the purpose of testing the accuracy and veracity of the prosecutrix and for no other purpose. (2 Brickwood's Sackett's Instructions to Juries, sec. 2820, p. 1795; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Carpenter, 124 Iowa 5, 98 N.W. 775.)

J. H. Peterson, Attorney General, J. J. Guheen, T. C. Coffin, Assistants, and J. E. Good, for Respondent.

There is sufficient evidence corroborating the prosecuting witness in this case to warrant the conviction. (People v. Ah Lung, 2 Cal.App. 278, 83 P. 296; People v. Allen, 144 Cal. 298, 77 P. 948; People v. Kaiser, 119 Cal. 456, 51 P. 702; State v. Downing, 23 Idaho 540, 130 P. 461; State v. Henderson, 19 Idaho 524, 114 P. 30; State v. Hammock, 18 Idaho 424, 110 P. 169.)

Evidence of the existence of improper relations between the defendant and the prosecutrix is corroborative of the testimony of the prosecutrix. (State v. King, 117 Iowa 484, 91 N.W. 768-770; People v. Ah Lung, 2 Cal.App. 278, 83 P. 296.)

Proof of injury to the genital organs of the prosecutrix is always admissible as corroborating her story. The lapse of time between the act and the examination by the physician goes to the weight of the evidence and not its admissibility. (Underhill on Criminal Evidence, 2d ed., sec. 413; State v. Scott, 172 Mo. 536, 72 S.W. 897-899; State v. King, 117 Iowa 484, 91 N.W. 768-771; People v. Ah Lung, 2 Cal.App. 278, 83 P. 296; People v. Benc, 130 Cal. 159, 62 P. 404.)

The court properly charged the jury upon the question of corroboration and the refusal to give the instruction requested by the defendant was not error. (State v. Anderson, 6 Idaho 706, 59 P. 180; Higgins v. People, 58 N.Y. 377; Trimble v. Territory, 8 Ariz. 273, 71 P. 932; State v. Baker, 136 Mo. 74, 37 S.W. 810; State v. Birchard, 35 Ore. 484, 59 P. 468; Bennett v. State, 102 Ga. 656, 29 S.E. 918; People v. Estell, 106 A.D. 516, 94 N.Y.S. 748; Underhill on Crim. Evidence, 2d ed., sec. 411.)

It is error to refuse requested instructions, the substance of which is contained in instructions given by the court. ( State v. Peck, 14 Idaho 712, 95 P. 515.)

SULLIVAN, J. Stewart, J., concurs. AILSHIE, C. J., Dissenting.

OPINION

SULLIVAN, J.

The defendant, who is appellant here, was informed against upon a charge of statutory rape and convicted and sentenced to a term in the state penitentiary from five to twenty-five years. A motion for a new trial was overruled and this appeal is from the judgment and from the order denying a new trial. The specifications of error go to the insufficiency of the evidence to support the verdict, the admission and rejection of certain evidence and the refusal to give a certain instruction.

The following facts appear from the record: The prosecutrix at the time said crime is alleged to have been committed was in her 16th year of age and would have been sixteen on the following 15th of April, and was in her 17th year at the time of the trial in June, 1913. In 1910 the prosecutrix was living with her mother and sister in Boise, her father being dead. They were occupying a small house with another family consisting of the husband and wife and three children. It came to the knowledge of the probation officers that the place where the prosecutrix was living was not a proper place in which to bring up children, and the prosecutrix was taken before the probate judge of Ada county, and upon the showing made there was remanded by Probate Judge Brown to the custody and care of the Children's Home Finding Society in Boise. This occurred in 1910, about three months before the prosecutrix became thirteen years of age.

The defendant and his wife, who lived in Blackfoot, Idaho, having no children, were desirous of having a young person in their home for whom they could care and educate, and they concluded to apply to the Children's Home Finding and Aid Society of Idaho (which will hereafter be referred to as the Children's Home) to see if they could find a young girl to take into their home for the purposes above mentioned. Some correspondence or communications were had between them and the persons in charge of the Home which ultimately resulted in the defendant's going to the Home, and after looking the children over he concluded that the prosecutrix would be a proper person for him to take to his home and care for and educate. He returned to his home in Blackfoot and discussed the matter with his wife, with the result that they concluded to take her into their family and rear and educate her. At that time the prosecutrix was in poor health, having a spinal disease which affected her head, and at times had very severe headaches. At the time the defendant was at the Children's Home, above referred to, the disease with which the girl was afflicted was discussed by the superintendent of the Home and the defendant, and the conclusion reached by them was that with proper care she would recover from said disease and become strong and healthy. After the defendant had gone over the matter with his wife in regard to taking the girl into their home, they so notified those in charge of the Children's Home, and about the last week in April, 1910, an attendant from said Home took the girl to Pocatello, or Blackfoot, and delivered her to the Tregos and she entered their home.

The record shows that owing to the physical condition of the girl and the spells of sickness that she was having, the Tregos prepared a cot or bed in the room in which they slept for the girl, and that during the first year she was with them she frequently had severe attacks of the headache which occasioned the Tregos some worry and considerable care. The girl continued to sleep in the bedroom occupied by the...