State v. Wilson

• Decision Date: 15 September 1924
• Docket Number: 1099
• Parties: STATE v. WILSON [*]
• Court: Wyoming Supreme Court

228 P. 803

32 Wyo. 37

STATE v. WILSON ^[*]

No. 1099

Supreme Court of Wyoming

September 15, 1924

APPEAL from District Court, Natrona County, CYRUS O. BROWN, Judge.

J. S Wilson was convicted of assault upon a female under the age of 18 years with intent to have carnal knowledge, and he appeals.

Reversed and Remanded.

George W. Ferguson and Robert N. Ogden, Jr. for appellant.

The act not having been completed defendant's intent must be determined from the circumstances; 22 R. C. L. 1233; Com v. Merrill, 14 Gray, Page 415, the court erred in refusing to instruct on circumstantial evidence, Gardner v. State, 27 Wyo. 316; where the evidence is both circumstantial and direct, it is error to refuse a requested instruction on circumstantial evidence, 16 C. J. 1008 State v. Andrews, (Kans.) 61 P. 808; State v. Woolard, (Mo.) 20 S.W. 27, Kollock v. State, (Wis.) 60 N.W. 817; Perdue v. State (Ga.) 54 S.E. 820; each party is entitled to have their respective theories submitted under proper instructions, 14 R. C. L. 799, Reed v. State, (Okla.) 103 P. 1070; refusal to give requested instructions defining carnal knowledge or sexual intercourse was error, Maxey v. State, 52 S.W. 2; 2nd Bishop's Crim. Law 1127; State v. Frazier, (Kans.) 39 P. 819; State v. Grubb, (Kans. ) 41 P. 951; the prosecuting attorney was guilty of misconduct in his argument to the jury, 22 R. C. L. 104, State v. Baker, (Kans.) 46 P. 947; State v. Fischer, (Mo.) 27 S.W. 1109; People v. Fielding, (N. Y.) 53 N.E. 497; complaining witness was incompetent as a witness, 5804 C. S., such testimony is to be received with caution, 40 Cyc. 2200; Crosby v. State, 93 Ark. 156, 16 Am. Ency. Law 270, 28 R. C. L. 461; there was evidence that the charge was invented to seek defendant's property; it is always proper to impeach a witness, 33 Cyc. 1455; the court ruled out impeaching testimony offered by defendant as against witness Laney; the court erred in limiting the number of character witnesses called by defendant, Wharton (Crim. Law.) 11th Ed. 536, 16 C. J. 584; the constituent elements of rape are well established, 1 Wharton (Crim. Law.) 874; intercourse must be intended, 33 Cyc. 1435-1495; Draper v. State, 57 S.W. 655; People v. Dowell, (Mich.) 99 N.W. 23; State v. Dalton, (Mo.) 17 S.W. 700; Herrick v. Terr., (Okla.) 99 P. 1096; there must be something more than indecent liberties; impotency is a defense; impotency is defined as absence of procreative power, 21 Cyc. 1742; 4 Words & Phrases 3443; impotency of defendant was established by evidence offered by the prosecution.

David J. Howell, Atty. Gen., Vincent Carter, of Counsel.

The order overruling motion for new trial confers no jurisdiction to review questions not properly raised on appeal, Whitman v. Weller, 39 Ind. 519, 4 C. J. 1784; refusal of a requested instruction is not error if the point be otherwise covered, or not pertinent to the issues, Horn v. State, 12 Wyo. 80; Arnold v. State, 5 Wyo. 439; Cook v. Terr., 3 Wyo. 110; charges of misconduct of prosecuting attorney cannot be first raised on appeal, Burdoin v. Trenton, 116 Mo. 358; Co. v. Ry. Co., (Ky.) 51 S.W. 805; no exception was reserved to denial of defendant's motion that jury be instructed to disregard the testimony of Eunice Cook, leaving nothing to review, Atchinson v. Arnold, 11 Wyo. 351; Impr. Co. v. Bradley, 6 Wyo. 171; alleged error in ruling on the testimony of Mrs. Rhoades is not properly assigned, 6408 C. S., defendant relies on the order made by the trial court, made many days after the verdict was rendered, allowing exceptions to all adverse rulings which was included in the denial of the motion for new trial; this order does not present questions for review, unless exceptions were taken and noted at the time; the court had authority to limit the number of character witnesses, State v. Albanes, 190 Me. 199; State v. Rutherford, 152 Mo. 124; People v. Arnold, 248 Ill. 169; the evidence was both direct and circumstantial; aside from the testimony of the child, the offense is proven by all the circumstances of the case, much of which is admitted by defendant; penetration, however slight is sufficient to justify a verdict of rape; Ross v. State, 16 Wyo. 285; defendant made no attempt to establish impotency as a defense; the direction of a verdict is discretionary, Breese v. U.S. 106 F. 680; Bishop v. State, 18 Ga.App. 714; Bennett v. State, 68 Fla. 494.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The defendant J. S. Wilson was convicted of an assault upon one Eunice Rachel Cook, under the age of 18 years, with intent to have carnal knowledge of her, and he appeals.

The defendant was 63 years of age at the time of the trial; and Eunice Rachel Cook, whom we shall call the prosecutrix, was a child of five years of age according to her own testimony, and seven years of age according to the testimony of her mother. The assault is alleged to have occurred in Natrona County on September 18, 1921. While we are reluctant to go into the details of the sordid testimony disclosed by the record, yet on account of the questions raised in the case, it becomes necessary to do that, although we shall do so as briefly as possible. The testimony on behalf of the state, aside from that of the prosecutrix and that given by the physicians who examined her, was given by the father and mother of the prosecutrix and by Mr. and Mrs. Laney who lived in the same house with the Cooks. The home of the latter, on the outskirts of Casper, was close to that of the defendant, who seems to have had the only well in the neighborhood, and children, including prosecutrix, frequently played about the defendant's home and frequently got water from the well. It seems from the state's testimony that some time prior to the alleged crime and during the month of August, 1921, suspicion on the part of the Cooks and the Laneys, as a result of statements by the prosecutrix, fell upon the defendant of having committed assaults on the child similar to that with which he stands charged. On Sunday morning, September 18, 1921, the girl was suspected, by the Laneys, to be in the defendant's home. Mr. Laney, apparently without knocking, tried to open its entrance door, but finding it locked, tried to force it open, but apparently failed. He thereupon knocked and "about three minutes" thereafter, the defendant came to the door and said: "Mr. Laney, we can settle this without going into court." Three buttons on the defendant's pants were unbuttoned and he appeared nervous. The girl was found in the bedroom of defendant's house and was taken home. Laney tried to put defendant under arrest, but the latter refused to go and peace officers were thereupon called. But before their arrival the defendant went to Cook's house and stated in effect that he would "settle matters" without going into court. In his presence the prosecutrix stated that defendant picked her up, put her on a chair, raised her clothes, took "his naughty thing out and put it down by mine and wet on me." Upon examination of the girl, the underwear was found to be unbuttoned and torn at the crotch and some spots of a thick substance were found on her skirt and underwear.

The prosecutrix testified that defendant "picked me up by my arms and took me in the bed room and he lifted up my dress and he took his out and unbuttoned mine and put his down to mine;" that he did so after placing her on a chair; that he shut the door and locked it; that after he heard a noise at the door, he buttoned up his pants; that five times previously he did the same thing that he did on September 18, 1921, and that he always put her on a chair to do so. The witness testified on cross-examination that defendant told her not to go into the house and threatened her with a "spanking" if she did so; that defendant had always been kind to her; that she went into the house contrary to defendant's order. She rambled on in her testimony in her childish way and testified to some impossible things, for instance, that defendant during the time that he was in jail made an assault on her similar to that to which she had testified. On some facts she flatly contradicted herself. And the following questions and answers appear in the record: "Q. Did he injure you or hurt you anyway; give you pain? A. No. Q. Did he attempt to hurt you any way or give you any pain? A. No. Q. Didn't hurt you a bit? A. No."

Dr. Dacken and Dr. O'Connell made an examination of the child soon after the occurrence mentioned. A gelatinous substance, testified to by Dr. O'Connell as containing spermatazoa, and about one-fourth cubic centimeter in amount was found just inside the lips of the girl's vagina, which, as Dr. O'Connell testified, could have entered without penetration, by being deposited in the neighborhood of the vagina. There were spots of apparently the same substance on the underwear. Dr. Dacken further testified: "There was no evidence whatever of external violence. There were no bruises or lacerations; no hemorrhage; nothing whatever that would indicate violence of any sort" and no scratches whatever were found; that when he examined the girl previously in August, supposedly after an attempted rape, he found nothing. Dr. O'Connell testified that the girl's hymen was intact, and that "there was not anything wrong with the child's sexual organ."

1. Passing over the testimony on behalf of defendant, who produced testimony flatly contradicting some very material testimony for the state and who denied the acts charged against him and claimed a conspiracy on the part of the Cooks and the Laneys to ruin him and get his property, it is clear that a question of doubt was raised even under the evidence for the state as to the intent of the defendant...