DocketNumber: No. 5879.
Judges: Lee, Budge, Givens, Varían, Leeper
Filed Date: 10/24/1932
Status: Precedential
Modified Date: 10/19/2024
Appellant, Flitton, was charged with the crime of statutory rape, alleged to have been committed in Madison county, October 28, 1931, upon the person of the prosecutrix, Alice T., then and there a girl of seventeen. According to the state's evidence, on the evening of the day mentioned, appellant, a married man of 38 years, residing with his family of a wife and five children in St. Anthony, drove down in company with prosecutrix to Rexburg, some eleven or more miles distant from St. Anthony, stopping at the home of a Mrs. A., the general reputation of whose place for "orderliness" was bad. Beer was served them several times by Mrs. A. After its consumption, prosecutrix went to the bathroom and returning through a hallway encountered appellant, who "grabbed" her and "pulled" her into an adjoining bedroom, there forcing her to sit down upon the bed beside him and asking her "to give in to him." Prosecutrix became frightened and tried to get away, but defendant held her down: she was "too dizzy or anything to hardly do anything"; and he "put his hand" over her mouth so she "couldn't scream." Carnal intercourse followed. After a trial at which appellant denied the alleged crime or any approach thereto, the jury returned a verdict of guilty of assault with intent to commit rape; and from the consequent judgment comes this appeal.
The sufficiency of the evidence is attacked for the reason that the testimony of prosecutrix touching the crime charged is uncorroborated, "most contradictory" and the truth of the same "inherently improbable." That it is inherently improbable, we cannot agree. Contradictory in *Page 377
one vital respect it surely is, prosecutrix's admitted denial to her uncle that the act complained of ever happened. In many details, she was flatly contradicted; in others, she was corroborated by divers witnesses including the appellant himself. He admitted going with her to Mrs. A.'s and there drinking beer the Sunday prior to October 28th; he admitted he took her there the evening of the 28th, though denying all service of beer; he admitted she came to his room with Vivian A., and discussed her being in trouble over seeming pregnancy, denying, however, that she accused him of being the author of it. Prosecutrix swore that she told him that he had "got" her into trouble, but that he denied he had so done and said, "I can take you to any doctor and prove that you are not in trouble." Appellant testified he asked her: "Why don't you go see a doctor about it? To recite further contradictions would serve no purpose, as the jurors were the sole judges of the credibility of each witness: and evidently believed the state's story in preference to that of the defense. (Gordon v. SunshineMin. Co.,
With respect to prosecutrix on the stand, the trial court admonished the prosecutor: "If it appears necessary, you need not hurry her so much; give her a little time; she will get along all right." This, it is urged, gave the jury the impression that the witness "was telling or would tell the truth." The suggestion made direct to counsel and not to the jury can be deemed none other than an instruction as to the manner of examination: it will not be considered as having influenced the jury's verdict. (People v. Mayes,
Appellant complains that the prosecution was permitted over his objection to inquire of the complaining witness, if a few days before the alleged rape she had not accompanied a party of friends, including appellant, to the *Page 378
home of Mrs. A. and been served with beer there. As contended by the state, this evidence was admissible, in that it tended not only to show an intimate relationship between appellant and prosecutrix, but that his taking her to a place of known ill repute where intoxicating liquors could be obtained indicated a harbored design ultimately to get her drink-befuddled and, while in such condition, know her sexually. As was said inState v. Collins,
Fault is found with the prosecutor's statement in the presence of the jury: "The attitude of counsel for the defense, your Honor, toward this witness is extremely reprehensible. He has got a mere child here, and he tries to browbeat her and frighten her into making false answers." Immediately, defense counsel objected to the remark, characterizing it as prejudicial and reversible error, and further declaring: "I have tried my best to be courteous to this girl; upon cross-examination, your Honor, I have been as polite as a man could be." Whereupon, the court announced: "I don't think the criticism is justified by the circumstances," and addressed the panel as follows: "I will ask the jury to disregard these remarks between counsel: they have nothing to do with the case." Such remark to counsel coupled with a direct admonition to the jury effectually safeguarded the rights of the accused. (State v. Caviness,
Evidently, for the purpose of impeachment, appellant was asked on cross-examination:
"Q. Do you remember going to Ray's home in St. Anthony?
"A. Yes, sir.
"Q. Did you request him to go to Mr. T., the father of Alice, and try to effect a settlement of this case?
"A. No, sir; I absolutely did not.
"Q. Never made that request of him?
"A. No, sir; I did not." *Page 379
Neither "Ray" nor any other witness was ever called by the prosecution to rebut this testimony, and appellant charges that such irregular procedure "and the Court not admonishing the jury to disregard same was clearly error and highly prejudicial," citing State v. Fowler,
There is no merit in the contention that "The prosecution erred in not producing the best evidence, that is to say, a competent surgical practitioner . . . . to show that the complaining witness had actually been raped." If she tells the truth, where is there any better evidence than that of the victim? She must, of course, be corroborated, at least by the circumstances surrounding the commission of the offense. (State v. Short,
Finally, appellant predicates error upon the prosecuting attorney's statement in his address to the jury that a certain witness for the defense had threatened "to shoot" appellant on account of his conduct with the witness' sister. The witness as a matter of fact had admitted that he had "made threats against Flitton's life" because of such conduct. At the court's request, the reporter read the testimony in question, the prosecuting attorney thereupon acknowledged his error, specifically retracting the word "shoot." Whatever error there may have been was thus effectually cured. It was the theory of appellant that the prosecution had been "framed" by Grant P., uncle of *Page 381 prosecutrix, to exact money tribute from appellant. Apparently, to disprove such theory, the prosecuting attorney addressing the jury declared that Grant P. knew the defendant had no money. This statement was unwarranted, there being no such evidence in the record. Appellant accordingly objected and now claims error. It was error, but the jury evidently believed that a crime had been committed, irrespective of the uncle's motive in the prosecution. That belief based upon substantial evidence we cannot question here.
Judgment affirmed.
Budge, Givens, Varian and Leeper, JJ., concur.