State v. Winslow, 1691

• Court: Supreme Court of Utah
• Writing for the Court: STRAUP, J.
• Citation: 30 Utah 403,85 P. 433
• Parties: STATE v. WINSLOW
• Decision Date: 12 May 1906
• Docket Number: 1691

85 P. 433

30 Utah 403

STATE
v.
WINSLOW

No. 1691

Supreme Court of Utah

May 12, 1906

APPEAL from District Court, Second District; J. A. Howell, Judge.

J. H. Winslow, Jr., was convicted of attempt to commit incest, and appeals.

AFFIRMED.

Henderson & MacMillen for appellant.

M. A. Breeden, Attorney-General, for the State.

STRAUP, J. BARTCH, C. J., concurs in result. McCARTY, J., concurs.

OPINION

[30 Utah 404] STRAUP, J.

1. The defendant was convicted of an attempt to commit incest on his daughter, then between eleven and twelve years of age. At the time in question the defendant occupied a cot in a sleeping room, and his daughter, with several smaller children, occupied a bed in the same room. Defendant's wife, who, about two weeks prior to the commission of the offense, was confined, occupied, with an attendant, an adjoining room. On the evening in question the defendant had retired and when his daughter entered the room, also to retire, and commenced undressing, he called to her to lie down with him. She did so. He caressed her and then unpinned and raised her garments and attempted to have sexual intercourse with her. She said he penetrated her "about that far," (indicating) [85 P. 434] which counsel, on cross-examination, said was about three-quarters of an inch, and she said, "about that." She testified that she did not consent to the act, and tried to pull away from the defendant but was unable to do so because he held her; that he attempted intercourse with her the second time, and then dropped off to sleep; she said it hurt her, but she did not call out to her mother because she was frightened. After the second attempt she left his cot, and sat on her bed thinking whether she should tell her mother. After a few minutes she went into her mother's room and told her. Her mother asked her to go with her into the defendant's room and there repeat in his presence what she had said to her. At first the girl hesitated because of her excitement and fear of the defendant, but finally did so. The defendant said, "I didn't, did I, Mandy?" She said that he did. The defendant arose, knelt before his wife and begged forgiveness. She told him to take his bed and go in the kitchen. The defendant went into the kitchen and there walked back and forth crying and calling himself names. The chief of police and several other officers testified that the defendant, at the time of his arrest, said that he had attempted to have intercourse with his daughter, but then thought of the wrong he was doing, and quit.

2. The first error assigned relates to the admission of testimony. [30 Utah 405] Dr. Forbes, on behalf of the state, testified that he, on a certain date, which was five or six days after the offense was alleged to have been committed, made an examination of the vaginal parts of the prosecutrix and was asked to state what he observed about their condition. This was objected to as being irrelevant, incompetent, and immaterial "for the reason that you cannot prove incest in this manner." The objection being overruled, the witness answered, that there was a superficial inflammation of the mucus membrane of the vagina or entrance to it, an irritation or redness and a soreness. On cross-examination he said that the inflammation extended as far as he could observe; that he thought it not possible for a full grown man to enter the vagina very far, but that it might be done for three-quarters of an inch; and that he couldn't tell when the injury which caused the inflammation took place, or what caused it. Thereupon a motion was made to have the testimony stricken, which was also overruled. It is now claimed by appellant that incest involves a voluntary connection, and, while this evidence might be material and competent in rape, it is immaterial and incompetent in incest, and, further, because it was not shown that the girl was in the same condition at the time of the examination as at the time of the commission of the offense. We see no force to these objections. The testimony was properly received as tending to corroborate the statement of the prosecutrix that her person had been violated. The time was not so remote but that a jury might say it was the defendant's act that caused the condition of the prosecutrix as described by the witness. ( People v. Stratton, 141 Cal. 604, 75 P. 166; Commonwealth v. Lynes, 142 Mass. 577, 8 N.E. 408, 56 Am. Rep. 709.)

3. Mary Eastman, a witness on behalf of the state, was asked: "Did Amanda Winslow [the prosecutrix] make any complaint to you at any time about her father having any carnal knowledge of her?" Over defendant's general objection, she answered, "Yes, sir." She did not remember the date, but said that she remembered the day that the girl went to the doctor's office and that it was three or four days before [30 Utah 406] that. The witness could not remember whether the prosecutrix told her the day it (the injury) occurred. On cross-examination she said that she knew the prosecutrix went to the doctor's office from what she told her. A motion was made that all the evidence be stricken. Court: "I think the whole may go out excepting that portion concerning a complaint made to the witness." Defendant's counsel: "About the injury?" Court: "About the injury." The testimony, therefore, left standing, was to the effect that the prosecutrix made complaint to the witness about the injury. The prosecutrix having herself been a witness in the case, the state had the right to show whether she made complaint of injury, when and to whom, and had the right to prove such fact by the person to whom the complaint was made. (State v. Neel, 21 Utah 151, 60 P. 510; 3 Greenleaf Ev. section 213.)

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