Strand v. State

• Citation: 36 Wyo. 78,252 P. 1030
• Decision Date: 08 February 1927
• Docket Number: 1350
• Parties: STRAND v. STATE [*]
• Court: United States State Supreme Court of Wyoming

252 P. 1030

36 Wyo. 78

STRAND v. STATE ^[*]

No. 1350

Supreme Court of Wyoming

February 8, 1927

ERROR to District Court, Park County; PERCY W. METZ, Judge.

Adolph Strand was convicted of rape, and he brings error.

Affirmed.

Paul R Greever and Meyer Rankin, for plaintiff in error.

The court erred in receiving the testimony of Cora Price, as to the mental ability of the prosecuting witness, it being mere hearsay, and also the testimony of Miss Libby Roney, on the same subject; the court should have examined the child in open court and determined from her own testimony whether she was a qualified witness; State v. Michael, 19 L. R A. 605. There was no corroboration of the prosecuting witness as to some of the essential facts necessary to prove the charge; Tway v. State, 7 Wyo. 74; State v Wilson, 228 P. 803; Wharton Crim. Law, 11th Ed., 904. The testimony of the wife of accused was erroneously received against him; 5805 C. S. The court erroneously permitted the introduction of what passed in a conversation between the defendant and one Carpenter, a deputy sheriff; the principal part of the state's evidence is in the form of rebuttal but, in reality, evidence that was a part of the state's case in chief; the court erred in receiving it after defendant had rested; the court erred in refusing defendant's requested instruction as to uncorroborated testimony of the prosecuting witness; Wharton Crim. Law, 11th Ed., 904; State v. Rash, 130 N.W. 91; State v. Stewart, 52 Wash. 61. The court erred in refusing defendant's requested instruction "A"; State v. Rash, supra; State v. Stewart, supra.

D. J. Howell, Atty. Gen., and John C. Pickett, Asst. Atty. Gen., for the State.

The witnesses Price and Roney were school teachers, who knew of the mental capacity of complaining witness; the court did not err in receiving their testimony; 16 C. J. 875-877. It is only persons under the age of ten, who appear incapable of receiving just impressions of facts respecting the nature of their examination, who are incompetent to testify; 5604 C. S. The court has discretionary power to pass upon the qualifications of a child witness, and a conviction will not be reversed on this ground unless it be shown that the child was incapable of receiving impressions or understanding an oath; Wheeler v. U. S. 159 U.S. 523; 40 L.Ed. 244; 5804 C. S. No objections were made to the testimony of the prosecutrix at the trial; Mills v. State, (Ga.) 30 S.E. 778; Burke v. Ellis, (Tenn. ) 58 S.W. 855. It is quite apparent that the witness was qualified; in the absence of statute, corroboration of the prosecutrix, in a rape case, is not required; Tway v. State, 7 Wyo. 74; (Id.) State v. Bowker, 231 P. 706; State v. Wade, (Mo.) 269 S.W. 52; Day v. State, (Okla.) 232 P. 122; State v. Cox, (Mo.) 263 S.W. 215; People v. Rabbit, (Cal.) 221 P. 391; Brewer v. State, (Tex.) 254 S.W. 809; State v. Wilhelm, (Kan.) 210 P. 347; McIntosh v. State, (Tex.) 239 S.W. 622; State v. Dachtler, (S. D.) 179 N.W. 653; Jones v. People, (Colo.) 195 P. 526; People v. Vickroy, (Cal.) 182 P. 764. 5804 C. S. is not applicable here, for the reason that the wife testified in favor of her husband; moreover, no objections were made to her testimony; voluntary admissions of the accused, made before or after the crime, are admissible without laying the ordinary foundation for the introduction of a confession; Clay v. State, 15 Wyo. 59; Mortimore v. State, 24 Wyo. 462; 16 C. J. 626. The court had discretionary power to permit prosecution to reopen its case and offer additional testimony; 7532 C. S.; Keffer v. State, 12 Wyo. 49; State v. Pinkston, 240 P. 219. Evidence of other criminal acts are admissible to show the lustful disposition of the defendant, and the existence and continuance of the illicit relation; 16 C. J. 608; 22 R. C. L. 1205. Instruction "B" requested by defendant, did not state the law and was properly refused; most of the points raised by defendant's brief are unsupported by authority and violate Rule No. 14 of the Supreme Court; See also, 3 C. J. 1428; Chestnut v. Lynch, (Okla.) 202 P. 1018; Meister v. Harrison, (Cal.) 206 P. 106; Cornner v. Hamilton, (Mont.) 204 P. 489; Winterton Co. v. Co., 211 F. 618.

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

OPINION

KIMBALL, Justice.

The plaintiff in error, hereinafter called the defendant, was convicted of rape of his own daughter who at the time of the offense was about ten and one-half years of age.

The testimony of the prosecutrix reveals a shocking state of depravity. If the defendant committed the act charged, his wife, the mother of prosecutrix, probably knew at the time what was being done. It is contended that the evidence was insufficient. The testimony of the prosecutrix as to the main fact, i. e., that defendant was the person who had carnal knowledge of her, was not corroborated. A conviction of rape may be had on the uncorroborated testimony of the prosecutrix. Tway v. State, 7 Wyo. 74, 50 P. 188. Yet it is undoubtedly true that the trial judge in acting on a motion for a new trial, and the appellate court in considering the sufficiency of the evidence, should take care to see that a verdict is not allowed to stand where it seems that the jury, who are likely to be influenced too much by the heinousness of the charge, have given undue weight to uncorroborated evidence that is unreasonable and improbable, or opposed to conceded facts. But it will not do to hold that the testimony of the prosecutrix is to be rejected because it indicates an unusual state of depravity. State v. Goodale, 210 Mo. 275, 109 S.W. 9; People v. Von Perhacs, 20 Cal.App. 48, 127 P. 1048.

We shall refrain from reciting details of the evidence with reference to the act constituting the offense. If the girl's testimony was true, there can be no doubt of defendant's guilt. The sole question, therefore, on the sufficiency of the evidence, is whether the jury were entitled to believe her. The act charged in the information was one committed January 19, 1925. The prosecutrix testified to many other similar acts during several months before that date. Her physical condition, as shown by the testimony of two physicians who had examined her, was such as might have been expected if her story was true. She was subjected to much questioning at the trial by the attorneys on both sides and by the court. She was searchingly examined not only as to the details of her physical relations with her father, but also as to all matters that might have furnished a motive for making a false charge, and was frequently reminded of the seriousness of the charge and admonished to tell nothing but the truth. The trial seems to have been conducted without any effort to inflame the minds of the jury. From the conduct of the judge and the attorneys the jury must have been impressed with the fact that the testimony of the prosecutrix should not be taken to be true until it had been carefully examined in the light of every circumstance that would suggest the possibility of a bad motive or a defective mentality that would cause her to testify falsely. She showed no malice toward her father that would furnish a sufficient motive for giving false testimony, and complained of no ill treatment except the unlawful sexual practices. Indeed, when testifying before the Justice of the Peace, at the preliminary examination, she refused to accuse her father, and insisted that the only person with whom she had had sexual intercourse was her brother, eight or nine years old. She says she then so testified because her mother told her to do so. Her mother, who was a witness for defendant, denied this, but was impeached by proof of a conversation with the prosecutrix which tends to show that the latter's testimony on that point was true. The mother was contradicted on other matters, and the jury were entitled to disbelieve her, as they evidently did.

This is a case in which the appearance and conduct of the witnesses may have been a very important factor in deciding who was telling the truth. The jury, having that advantage, believed the prosecutrix, and the trial judge, who also had it, has approved the verdict. We cannot say from the written transcript that the verdict can be set aside as unsupported by sufficient evidence.

Before the prosecutrix was put on the stand, the state examined two witnesses to show her mental capacity. One of these witnesses gave some hearsay testimony as to a mental test, stating that the report of the test showed that the prosecutrix had an "intelligence quotient" of 104--100 being the average--and that this indicated that she was above the average in mental ability. This evidence was probably objectionable, not only because it was hearsay, but on other grounds. It was also unnecessary. The prosecutrix was a competent witness, at least prima facie (Sec. 5804, Wyo. C. S. 1920), and when she was examined as a witness, no question was raised as to her competency. When she took the witness stand, and before she was asked anything in regard to the facts in the case, she was examined in the usual way about those matters that would tend to show whether or not she was competent to testify, and there appeared no reason for refusing to accept her as a witness. When the jury had seen the prosecutrix on the stand, and heard her give all her testimony, they then had a so much better way of judging of her intelligence, that we are sure they could not have been influenced by the objectionable evidence about the mental test.

The state was permitted to prove that the defendant, after his arrest and while in the custody of the constable, stated to the constable, that "this was quite a mix-up he had got into and if I (the constable) could do him any good he sure would...