State v. Wargo

• Decision Date: 05 March 1929
• Citation: 145 A. 456
• Parties: STATE v. WARGO.
• Court: New Hampshire Supreme Court

145 A. 456

STATE

v. WARGO.

Supreme Court of New Hampshire. Rockingham.

March 5, 1929.

Transferred from Superior Court, Rockingham County; Scammon, Judge.

Steve J. Wargo was convicted of rape of his daughter Mary, and he brings exceptions relating to evidence and argument. New trial ordered.

Stewart E. Rowe, Sol., of Exeter, for the State.

William H. Sleeper, of Exeter, for defendant.

ALLEN, J. The evidence of the defendant's conduct towards Mary on other occasions than of the offense charged was competent to show purpose. State v. Foster, 80 N. H. 1, 4, 113 A. 211, 114 A. 277; State v. Braley, 81 N. H. 323, 126 A. 12. The relevancy of such evidence does not depend upon the fact that the conduct is the same as that of the offense charged, but upon its force in showing the defendant's purpose to commit the crime. Any conduct which tended to show that the defendant had it in mind to have sexual relations with his daughter was in support of the issue of purpose, and whether the conduct consisted of improper advances, improper relations, or punishment calculated to subjugate her to his will through fear, evidence of it was pertinent to the issue. Purpose to commit a crime is on the same relevant footing as motive, and the rule that, "When there is a question whether any act was done by any person, any fact is relevant to the issue which supplies a motive for such an act" (State v. Dearborn, 59 N. H. 348, 349), applies as well to any facts which show a purpose to perform the act. There is nothing to show that the evidence was admitted to show bad character or a tendency to commit the crime or for any general persuasive bearing.

The evidence of Mary's complaint to a police officer about the defendant's treatment of her, and of the action taken on the complaint in furnishing her protection, was properly admitted. It was for the state to show that the crime was forcible and against the victim's consent, and whatever bore on that issue was competent. Mary's willingness or unwillingness, as a state of mind, might be shown by her words and conduct on occasions either before or after the offense. Hoxie v. Walker, 75 N, H. 308, 311, 312, 74 A. 183; Caplan v. Caplan, 83 N. H. 318, 142 A. 121. That she so seriously sought as to obtain protection against the defendant tended to substantiate her testimony that she stood in fear of him and did not willingly submit to him.

The exception to the allowance of testimony, in the defendant's cross-examination, of talks he had with his wife about Mary, comes to nothing. While it would seem that it would be a violation of marital confidence to disclose such talks, the evidence went no further than to show that there had been talks. No prejudice therefrom appears, and any error became immaterial.

Soon after the date of the crime as charged, Mary's uncle took her to Connecticut at her request. Subject to exception, he was permitted to testify that she told him she was going to leave home because she was being abused and beaten. The testimony was competent. It was explanatory of the conduct of the witness in taking her, and it was of bearing in showing Mary's state of mind towards the defendant. Caplan v. Caplan, supra. Specific instruction that her statements thus made should not be used as evidence of their truth was not required, unless requested.

A witness was permitted to testify about the defendant's manner and attitude while he was under arrest for the crime charged. The testimony was that he was repentant, much changed from a previous aggressive attitude, and wanted help. It was some evidence of acknowledgment of guilt, and that it was in the form of the witness' opinion, rather than limited to a statement of the defendant's conduct and words, did not make it objectionable. State v. Foster, 80 N. H. 1, 4, 5, 113 A. 211, 114 A. 277; State v. Hause, 82 N. H. 133, 136, 137, 130 A. 743. The witness was also allowed to testify to his opinion expressed to the defendant of the latter's guilt in the following language: "I told him, I said, 'Wargo, you don't deserve any help from me, or from nobody.' S'I, 'You don't have to tell me you are guilty of this, because there is more ways than one of a man's showing guilt. You can't beat your conscience. You can say 'No' to this for a hundred years, but I see by your attitude that you are guilty.' And I says: 'I have no sympathy for you. I have been 22 years, in this game. It is the first time I ever had a case of this kind, and,' I says, 'for me to help...