State v. Vail

Citation47 Idaho 354,275 P. 578
Decision Date18 March 1929
Docket Number5176
PartiesSTATE, Respondent, v. WESLEY VAIL, Appellant
CourtUnited States State Supreme Court of Idaho

RAPE-CORROBORATIVE EVIDENCE-SUFFICIENCY.

In prosecution for statutory rape, circumstances surrounding commission of offense held to be clearly corroborative of statements of prosecutrix, under evidence showing outcry at time of offense, complaint by prosecutrix shortly thereafter opportunity and disposition to commit offense, and physical examination of prosecutrix by physician.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Wesley Vail was convicted of the crime of rape, and he appeals. Affirmed.

Affirmed.

Stone &amp Jackson, for Appellant.

At common law where the accused was not permitted to testify in his own behalf, the testimony of the prosecutrix might be sufficient to warrant a conviction for rape; but under the statutes of this state when the accused avails himself of the right to testify, and clearly and explicitly denies the commission of the offense, there must be testimony corroborating that of the prosecutrix to authorize a conviction. (Bueno v. People, 1 Colo. App. 232, 28 P. 248; State v. Baker, 6 Idaho 496, 56 P. 81; State v. Anderson, 6 Idaho 706, 59 P. 180.)

"The law is jealous of the rights and liberties of persons, and it has said that one may be convicted of the crime of rape upon the uncorroborated testimony of the prosecutrix only when 'The character of the prosecutrix for chastity, as well as for truth, is unimpeached, and where the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix.'" (State v. Short, 39 Idaho 446, 455, 228 P. 274; State v. Baker, supra; State v Anderson, supra; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Andrus, 29 Idaho 1, 156 P. 421; State v. Bowker, 40 Idaho 74, 231 P. 706, 26 L. R. A., N. S., 1149, and annotations; Allen v. State, 10 Okla. Cr. 55, 134 P. 91.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

The fact that the defendant testifies and denies his guilt does not of itself render corroboration of the prosecutrix necessary. (33 Cyc. 1497; Johnson v. People, 197 Ill. 48, 64 N.E. 286; State v. Marcks, 140 Mo. 656, 41 S.W. 973, 43 P. 1095; People v. Randall, 133 Mich. 516, 95 N.W. 551; 22 R. C. L. 1222.)

Complaint by prosecutrix made shortly after the commission of the offense is a corroborating circumstance. (State v. Black, 36 Idaho 27, 208 P. 851; State v. Fowler, 13 Idaho 317, 89 P. 757; State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; 22 R. C. L. 1213; State v. Smith, 46 Idaho 8, 265 P. 666.)

Testimony of a physician as to the physical condition of prosecutrix shortly after the crime tends to corroborate prosecutrix. (State v. Smith, supra; Underhill on Criminal Evidence, 3d ed., sec. 614; 33 Cyc. 1475; State v. Rash, 27 S.D. 185, Ann. Cas. 1913D, 656, 130 N.W. 91; 22 R. C. L. 1218.)

Opportunity coupled with other pertinent circumstances may be a circumstance tending to corroborate prosecutrix. (People v. Rardin, 255 Ill. 9, Ann. Cas. 1913D, 282, 99 N.E. 59.)

BUDGE, C. J. Givens and Wm. E. Lee, JJ., concur. Hartson, D. J., dissents.

OPINION

BUDGE, C. J.

Appellant was convicted of the crime of statutory rape. He has appealed from the judgment and assigns as error that the evidence is insufficient to support the verdict and judgment. The evidence may be briefly summarized as follows:

On the night of May 29, 1927, appellant with three boys and three girls left Caldwell in a Chevrolet coach, drove to Nampa and back to near the city limits of Caldwell, where they left the highway and drove some distance out on a cross-road and stopped. The prosecutrix testified, among other things, that one of the boys became ill and got out of the car. Later, all of the parties got out of the car except the prosecutrix and appellant. Appellant then forced the prosecutrix to have sexual intercourse with him, while she tried to fight him off and uttered a scream, heard by others of the party. Shortly thereafter all of the parties got back into the car and returned to Caldwell. The prosecutrix also testified that shortly after their return to Caldwell she made complaint to one of the girls who was a member of the party, and on the day following made complaint to her sister. There is evidence in the record that the prosecutrix had never met appellant before, that she sat on his lap on the drive from and to Caldwell. There is also evidence that there was some drinking; that the parties occupying the car, except the prosecutrix and appellant, after getting out of the car remained in close proximity thereto, and that during the time appellant and prosecutrix were in the car one of the parties came to the car and asked appellant for a bottle of liquor, which he gave to her. The record discloses the further fact that either on Wednesday or Thursday following the Sunday evening of May 29, 1927, the prosecutrix was taken to a physician for a vaginal examination. The physician's testimony may be summarized as follows:

"I first made a vaginal examination . . . . to find the condition of the hymen to see whether she had been accustomed to sexual intercourse, things of that kind. . . . There was a bruised spot on the right side of the vagina that would be caused from some pressure in some way, rather violent pressure, but there was no abrasion, just a black and blue spot on the vagina on the right side. . . . It was possible for sexual intercourse to have taken place. . . . It was possible that this girl had had intercourse; that it hadn't occurred more than once."

On cross-examination the physician testified, in answer to the question:

"Q. From the general appearance there, and your examination, did it look to be more likely that she had, or had not, had intercourse?

"A. Nothing to tell me either way. It could have been, but whether it was or not I don't know. There was a bruised spot on the side of the vagina."

The physician was unable to testify, if intercourse had taken place, whether recently or otherwise, and further stated that the condition found could have existed without intercourse.

In State v. Anderson, 6 Idaho 706, 59 P. 180, the following language was used:

"Undoubtedly the rule is that a defendant may be convicted of the crime of rape upon the uncorroborated testimony of the prosecutrix; but this is only so when the character of the prosecutrix for chastity as well as for truth is unimpeached, and where the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix."

The reputation of the prosecutrix for truth was unimpeached, and her chastity unquestioned. While as to the latter, such evidence would be inadmissible (State v. Henderson, 19 Idaho 524, 114 P. 30), the fact that her evidence was not contradictory no doubt would be taken into consideration by the jury in connection with all the other facts and circumstances in the case.

"While the law in this class of cases requires that the prosecutrix shall be corroborated, it does not demand that the corroboration shall be by direct evidence of the particular fact constituting the crime. Proof of incriminating circumstances is sufficient." (Dunn...

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5 cases
  • State v. Linebarger, 7613
    • United States
    • United States State Supreme Court of Idaho
    • April 23, 1951
    ...v. Leavitt, 44 Idaho 739, 260 P. 164; State v. Smith, 46 Idaho 8, 265 P. 666; State v. Alvord, 47 Idaho 162, 272 P. 1010; State v. Vail, 47 Idaho 354, 275 P. 578; State v. Thomas, 47 Idaho 760, 278 P. 773; State v. Haskins, 49 Idaho 384, 289 P. 609; State v. Flitton, 52 Idaho 374, 15 P.2d 3......
  • State v. Kotthoff, 7311
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1947
    ......63. . . Robert. Ailshie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for. respondent. . . In a. case of rape or assault with intent to commit, evidence which. tends to strengthen the testimony of the prosecutrix is. corroborative. State v. Vail, 47 Idaho 354, 275 P. 578, and authorities there cited. . . By. corroboration is meant evidence which corroborates the. testimony of the prosecutrix, not proof of the physical acts. involved. No other sort of corroboration is required. State v. Flitton, 52 Idaho 374, 15 P.2d ......
  • State v. Froelich
    • United States
    • United States State Supreme Court of Idaho
    • May 5, 1975
    ...considered together furnish sufficient evidence to clearly fall within the meaning of the rule. State v. Tope, supra; State v. Vail, 47 Idaho 354, 359, 275 P.2d 578 (1929). Therefore we conclude that the record contains sufficient corroborative evidence of the testimony of the prosecutrix t......
  • State v. Bernhardt
    • United States
    • United States State Supreme Court of Idaho
    • October 8, 1931
    ...... evidence tending to connect defendant with the crime is a. question for the court. Whether or not the prosecutrix is. clearly corroborated by other facts and circumstances is a. question for the jury and the verdict will not be disturbed. unless not clearly corroborated. (State v. Vail, 47. Idaho 354, 275 P. 578; State v. Mason, 41 Idaho 506,. 239 P. 733.). . . BUDGE,. J. Lee, C. J., and Givens, Varian and McNaughton, JJ.,. concur. . . . OPINION. . . [51. Idaho 135] BUDGE, J. . . Appellant. was convicted of the crime of ......
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