State v. Hines

Defendant appeals from a judgment of conviction of rape committed upon a female under the age of eighteen years. Appellant assigns three errors: (1) The giving of an erroneous instruction, No. 9; (2) the giving of two instructions upon the question of the necessity of corroboration, "because they are contradictory and confusing, cannot be reconciled and do not correctly state the law"; (3) that the evidence is insufficient to justify the verdict or support the judgment.

Instruction No. 9 complained of is as follows:

"You are instructed, gentlemen, that certain evidence has been introduced in this case which may tend to show that the defendant committed other acts of a similar nature to the one charged in the information upon the prosecutrix. You are charged that such evidence has been admitted in this case not for the purpose of proving a different offense, for the defendant can only be convicted of the specific offense charged in the information, but for the sole purpose of showing the relation and familiarity of the parties and as corroborative of the prosecutrix's testimony concerning the particular act relied upon for the conviction."

This instruction was erroneous in assuming that there was any other evidence tending "to show that the defendant committed other acts of a similar nature to the one charged in the information upon the prosecutrix." There was no evidence of any other sexual intercourse or acts which could be properly termed "of a similar nature." While this instruction might not, standing alone, be reversible error, it was erroneous. It was not called for or authorized by any fact in the case. It assumed facts as having been proved that were not shown to exist.

"The court is not authorized to assume injurious facts against an accused in charging the jury." (Arnold v. State (Tex.Cr.App.), 83 S.W. 205.) See, also, Homer v. State (Tex.Cr.App.), 65 S.W. 371; Sischov. United States, 296 Fed. 696.

Appellant assigns as error the giving of instructions Nos. 6 and 7. Instruction No. 6 told the jury that the testimony of the prosecutrix would be sufficient of itself to warrant a conviction "without other corroborating circumstances or evidence," unless her testimony was contradictory or her reputation for truth impeached, and that it was only in such case that she must be corroborated by other evidence of facts and circumstances which of itself, "without the aid of her testimony, tends to connect the accused with the commission of the offense."

State v. Pettit, 33 Idaho 326, 193 P. 1015, is cited as authority for a similar instruction, but it was not there attacked upon the ground stated here, and was accompanied by another as follows:

"You are instructed that in the case of rape it is not essential that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense, and if the jury believe from the testimony of the prosecutrix, and the corroborating circumstances, and facts testified to by other witnesses, that the defendant did make the assault as charged, the law would not require that the prosecutrix should be corroborated by other witnesses as to what transpired at the immediate time and place when it is alleged the assault was made."

This latter was declared "a correct statement of law," but that decision cannot be said to be authority that the testimony of the prosecutrix alone is sufficient upon which to convict, for it cites in its support Dunn v. State, 58 Neb. 807,79 N.W. 719, where a charge of rape and attempt to commit rape were made in two counts and the defendant convicted of the attempt, in which the court, in passing upon this point, said:

"While the law in this class of cases requires that the prosecutrix shall be corroborated, it does not demand that the corroboration shall be by direct evidence of the particular fact constituting the crime. Proof of incriminating circumstances is sufficient."

Thus, the Pettit case cannot he said to have departed from the rule laid down in all other Idaho decisions.

Assuming, for the sake of argument, that the testimony of the prosecutrix was not contradictory, and that her reputation for truth was unimpeached, instruction No. 6 advised the jury that it might be sufficient "without other corroborating circumstances or evidence," when all of the decisions of this court demand, in such case, in addition to an unimpeached reputation for truth and chastity, that the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix.

"A judgment of conviction of rape based upon the testimony of the prosecutrix alone cannot be sustained in any event unless the circumstances surrounding the commission of the offense are clearly corroborative of her statements." (State v. Short,39 Idaho 446, 228 P. 274.)

See, also, State v. Bowker, 40 Idaho 74, 231 P. 706; Statev. Anderson, 6 Idaho 706, 59 P. 180.

Instruction No. 7 correctly stated the law in accordance with the foregoing decisions, that in addition to an unimpeached character for chastity and truth, there must be corroboration.

In State v. Bowker, supra, the giving of two contradictory instructions upon this same point, one correct, the other incorrect, but which could not be reconciled, was held reversible error. The court was considering a record in which the defendant did not, as here, take the stand and directly deny the testimony of the prosecutrix. The opinion of the author in that decision that the evidence was insufficient, was not concurred in by a majority, and it does not, therefore, rest upon the sufficiency of the evidence, but alone upon the erroneous and conflicting instructions.

It is no argument for or against an instruction which permits a conviction without corroboration of the prosecutrix that there was corroboration in one case or none in the other, for the fact of corroboration, as well as all others, is first for the jury to determine. The test of such instruction cannot be made to rest upon whether there was corroboration, but on whether it was necessary for the jury to find corroboration or acquit.

The two instructions here are no more reconcilable than in the Bowker case. On the authority of that and other decisions of this court, the judgment must be reversed. (State v. Clark,27 Idaho 48, 146 P. 1107; State. v. Andrus, 29 Idaho 1,156 P. 421.)

Appellant's assignment as to the insufficiency of the evidence is that "The testimony of the prosecutrix is contradictory, its truth is inherently improbable, and her story as to what occurred at the time and place she asserts the crime was committed, is not corroborated by the testimony of any other witness nor by any circumstance disclosed by the record."

Whether or not the testimony of a prosecutrix is clearly corroborated by other facts and circumstances is, in the first instance, a question for the jury, and unless this court can say, as a matter of law, that such evidence is not clearly corroborative, we cannot reverse the cause upon that ground. (State v. Mason, 41 Idaho 506, 239 P. 733.) In view of a new trial granted upon other grounds, we will not discuss the evidence. This assignment is denied.

The judgment is reversed and the cause remanded for a new trial.

Wm. E. Lee, C.J., and T. Bailey Lee, J., concur.