People v. Smith ( 1899 )

Grant, C. J.

(after stating the facts). 1. The first objection is untenable. The crime is complete, under the statute, whether the intercourse is had with force or by-consent. In this case the proof is conclusive that the girl consented, unless it should have been found that she did not possess sufficient mind or intelligence to consent.

2. Cir. Ct. Rule No. 24, subd. 6, provides that counsel upon either side of a case shall be allowed at least a half hour, if it is desired, and that no more than two hours shall be allowed, unless the court otherwise orders. Under this rule the time for argument rested in the discretion of the circuit judge, and we find nothing to indicate that this discretion was abused.

3. In deciding this question, a brief statement of the testimony may be necessary. Carrie Frank was the first witness. Her direct and cross-examination are given in narrative form. After she had been cross-examined at considerable length, the following colloquy took place:

“The Court: Mr. Francis, is this man Marshall here, the justice of the peace?

“Mr. Francis: Yes, your honor.

“The Court: You may have this witness stand aside. Let’s see what he knows about it. I don’t propose to be trifled with by this witness any more. I have extended indulgence here without any reason. This girl is not non compos, in my judgment. You may stand aside. Take a seat down there. Call your other witnesses, and especially that justice. I want to know how he came over there to see about this trouble.”

Mr. Marshall was then sworn, and testified that he was a justice of the peace, that he was requested by the girl’s sister to take her to her father’s home, that he had previously heard the report of respondent’s intercourse with the girl, and that he took the complaint. On cross-examination he testified that he had stated that the girl at first denied the intercourse, because “her folks told me she denied it in the first place, when they first talked to her about it.” One Wellington, with whom respondent was boarding, testified that respondent told him he was going over to his brother’s to board, where this girl was, and for the express purpose of having intercourse with her, and that witness replied, “Mr. Smith, a man of your age ought to be thinking of something else besides trying to ■commit rape on a school-girl.” Two other witnesses testified that respondent voluntarily stated that he had accomplished his object, and had had sexual intercourse with the girl. Opposed to this testimony was the denial of the respondent of his intercourse with the girl, and of the conversations with the other three witnesses.

The only objection that can be urged against the charge of the court is that it failed to call attention to the testimony of the respondent. It is not urged that the charge was erroneous. On the contrary, it was entirely proper that the court should call the attention of the jury to the position of the young girl, and to instruct them that, in weighing her testimony, they should take into consideration her condition, her circumstances of life, and her embarrassing position upon the witness stand, and all cir•cumstances, in determining what credit they should give-to her evidence. He also called the attention of the jury to the impeaching testimony introduced by the respondent, ■and instructed them to weigh it in the light of all the circumstances. It was his duty to instruct the jury in regard to the admissions, and to say to them that—

“If they were made voluntarily and intelligently, they are considered competent evidence, and oftentimes evidence which tends strongly to the establishment of the crime charged, if they are admitted and confessed deliberately, intelligently, and under such circumstances that the party was not laboring under any undue influence.”

The circuit judge closed that part of his instructions by saying that it was the duty of the jury to weigh all the evidence, and determine from that whether the respondent was guilty. He then fully instructed them upon the presumption of innocence, and told them that they should not allow any prejudice or influence of sympathy or favor to weigh in determining the.important question before them. He then said, in closing his instructions:

.“You must take this evidence, and arrive at such a. conclusion as meets the approval of your honest consciences, and determine this question, of the greatest importance to the respondent, and of the utmost importance-to the people; and, when you have weighed this evidence, if your minds are in that condition that you can say that you believe him guilty to a moral certainty, beyond a reasonable doubt, it is your duty to convict, otherwise you must acquit.”

No fault can be found with this charge, unless it be the failure to call the attention of the jury to the denial of the respondent. He had able counsel to defend him, and no request or suggestion was made to the court by him upon-this point. The respondent stood contradicted by four-witnesses. Either he or they were guilty of perjury. There is nothing upon this record, except the statement of the circuit judge, to show that the girl was not of sound mind, and did not fully comprehend the nature of her oath. The statement mhde by the court would operate in-the respondent’s favor, rather than against him. -

The prosecution had not attacked the reputation of the-respondent for truth and veracity, and the evidence-introduced in his behalf upon this point was incompetent* and, upon objection, might have been rejected. It was. not error on the part of the court not to call the attention of the jury to this testimony. While the court might with propriety have said something to the jury about the defense, yet I do not think it was error for which the case should be reversed. Respondent had an able attorney to defend him; and I do not think it can be said that, under-the charge, the jury were misled, or did not understand and fully consider the defense.

I think the conviction should be affirmed.

Montgomery and Hooker, JJ., concurred with Grant, C. J.