Tway v. State
| Decision Date | 27 September 1897 |
| Citation | 7 Wyo. 74,50 P. 188 |
| Parties | TWAY v. STATE |
| Court | Wyoming Supreme Court |
Information filed in District Court May 23, 1896.
ERROR to the District Court for Fremont County, HON. JESSE KNIGHT Judge.
Thomas P. Tway was found guilty of the crime of rape upon an information filed in the District Court of Fremont County. He was sentenced to fifteen years in the penitentiary. A motion for new trial was overruled, and defendant applied for a writ of error. The information charged that "Thomas P. Tway late of the county aforesaid, on the 10th day of May, A. D 1896, at and in the county of Fremont, in the State of Wyoming, feloniously, unlawfully, forcibly, and against her will, did have carnal knowledge of a woman, one Julia E. Stevens." The statute defined rape as follows: "Whoever unlawfully has carnal knowledge of a woman forcibly and against her will, or of a woman or female child under the age of eighteen years, either with or without her consent, is guilty of rape, and shall be imprisoned in the penitentiary for any term not less than one year, or during life." (Laws 1890-91, Chap. 6, Sec. 1.) The material facts are stated in the opinion.
Reversed.
M. C. Brown, for plaintiff in error.
An information for rape should charge an assault, or use the word "ravish," which includes the idea of an assault. .) The defendant was informed against on May 23, 1896, but thirteen days after the alleged commission of the crime, and the defendant on the 23d day of June applied for continuance, on the ground of the absence of witnesses. The court held the motion sufficient, but denied the continuance on account of the admission by the Prosecuting Attorney, under the statute, that, if present, the witnesses named in the affidavit would swear as set forth in defendant's affidavit; and no time was then allowed defendant to get the witnesses. This was error. It was in violation of Sec. 10, Art. 1, of the Constitution, which provides that "a party accused shall be confronted with the witnesses against him, and have compulsory process served for obtaining witnesses." (People v. Diaz, 6 Cal. 248; People v. Vermilyea, 7 Cow., 383; 14 Johns., 341; 5 Cow., 15; 6 id., 567; 15 Nev. 372; 2 id., 324; 28 Cal. 448; 16 Wend., 603.)
The Attorneys for the State in argument not only referred to matters outside the record, but indulged in very unusual personal abuse of the defendant. That calls for a reversal of the judgment.
The uncorroborated testimony of the prosecutrix is not sufficient to support a conviction of rape. Particularly is this so where the evidence shows the prosecutrix to be a woman of questionable character and reputation as to virtue. (Matthews v. State, 19 Neb. 330.) The testimony is insufficient to support a conviction. There was not the resistance on the part of the prosecutrix which is essential to make out a case of rape, and that the intercourse was with her consent as defendant testified is corroborated by the circumstances (see, Olson v. State, 11 Neb. 276; Whittaker v. State, 50 Wis. 518; Moran v. State, 25 Mich. 356; State v. Murphy, 6 Ala. 765; Pleasant v. State, 13 Ark. 360; People v. Hulse, 3 Hill, 309; People v. Benson, 6 Cal. 222; Innes v. State, 42 Ga. 473; Gazley v. State, 17 Tex. App., 267; Montressor v. State, 19 id., 281; People v. Abbott, 19 Wend., 92; People v. Brown 47 Cal. 447).
Benjamin F. Fowler, Attorney General, for the State.
The objection that the indictment is not sufficient to sustain a conviction can not be raised for the first time in this court. (Boulter v. State, 42 P. 606.) The information was in the words of the statute, and is sufficient. (State v. Philbin, 38 La. Ann., 964; Smith v. Com., 85 Va. 924; State v. McGuffin, 36 Kan. 315.) By not demurring or making motion in arrest, the plaintiff in error waived every defect in the form of the information. (5 Mont. 246; State v. Gibbs, 25 P. 288; State v. Foot Yow, 32 P. 1031; State v. Hinckley (Idaho), 42 id., 510; Taylor v. People, id., 652 (Colo.); Brown v. People, 36 id., 1040 (Colo).) The motion for continuance was properly denied upon the admission by the attorney for the State that the absent witnesses would testify as set forth in the affidavit for continuance. (3 Ency. L., 820; Hoyt v. People, 140 Ill. 588; Comerford v. State, 23 O. St., 599; Terr'y v. Harding, 6 Mont., 323; Keating v. People (Ill.), 43 N.E. 724.) The provisions of Sec. 10, Art. 1 of the Constitution do not affect the question. (Hoyt v. People, supra.)
Alleged impropriety in the remarks of counsel in argument will not be considered as ground of error, when presented by affidavit merely, and not as a part of a settled case or bill of exceptions. (31 N.W. (Minn.), 176; State v. Helm (Ia.), 66 id., 751; State v. Paxton (Mo.), 29 S W., 705; 74 Ia. 637; 73 id., 442; 50 N.W. 885; 55 id., 336; 29 A. (Pa.), 16; 30 Fla. 41; 29 S.W. (Tex.), 159; 20 id., 590.) It is not the rule that a conviction for rape can not be had upon the unsupported testimony of the prosecutrix, but the contrary is the true and best sustained rule. (Barnett v. State, 3 So. 612; State v. Cook, 61 N.W. 185; People v. Rangod, 44 P. 1071; Kirby v. Terr'y (Ariz.), 42 id., 952; Garrison v. People, 6 Neb., 283.) The testimony is sufficient to sustain the conviction, and the statements of plaintiff in error as a witness tended to corroborate the testimony of the prosecutrix.
Four reasons are assigned why the verdict should be set aside in this case and a new trial granted.
1. That the information is insufficient to sustain a conviction.
2. That the court erred in denying the application for a continuance.
3. On account of certain abusive language alleged to have been used against the defendant by the attorneys for the State upon the trial.
4. That the evidence is insufficient to sustain the verdict.
It is contended by plaintiff in error that the information is insufficient because the word "ravish" is not used in describing the offense. The alleged defect being in the manner in which the offense is charged, the objection should have been made by a motion to quash in the court below. The attention of the district court was not called to it in any way, and the question is not properly before us for consideration. But the information is in the language of the statute, and is sufficient. Bishop says: "There are commonly employed in setting out some crimes, certain technical words for which it is believed there are no substitutes;" and he mentions as one of them "ravish," in the indictment for rape. He adds: 1 Bish. Crim. Proc., Sec. 335; and he states, Vol. 2, Sec. 953, The words do not occur in the definition in our statutes, and therefore there is no necessity for its use in describing the offense.
It is further urged by plaintiff in error that the evidence is insufficient to sustain a conviction; and it is contended that a conviction can not lawfully be had upon the unsupported testimony of the prosecuting witness. No such rule of law prevails in this State. Our Constitution provides that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act. In perjury, owing to the nature of the offense, the rule is that there must be more than the testimony of one witness as to the falsity of the oath, as otherwise it would simply be "oath against oath." And in seduction, our statute provides there shall be no conviction on the unsupported evidence of the female offended against. There is no such rule in cases of rape. Bishop says (2 Crim. Proc., 968), "The jury can even convict on the unsupported testimony of a strumpet;" and he significantly adds, "The court, if dissatisfied with the verdict, an set it aside."
But the jury are not to convict simply because the law permits them to, and there is no principle of law which presumes the unsupported statement of the woman to be true, and the statement of the man to be false. Such a rule would not only be unreasonable, but dangerous and wicked. And in practice, the number of cases where there is nothing to corroborate, or cast suspicion upon the testimony of the woman is so small that it may be said they do not exist.
In this case, according to the testimony of the prosecutrix, the defendant, whom she had known some five years, came to the...
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...been waived because the substantive element was alleged in the indictment, although by a legal conclusion only. Likewise, in Tway v. State, 7 Wyo. 74, 50 P. 188, it was Mr. Justice Corn delivering the opinion, that the omission of the word "ravish" in an information for rape was waived even......
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