DocketNumber: No. 4,991
Citation Numbers: 63 Mont. 322, 207 P. 124
Judges: Ayres, Comer, Galen
Filed Date: 5/8/1922
Status: Precedential
Modified Date: 9/9/2022
prepared the opinion for the court.
The information in this case charges the defendant and appellant with rape of one Mary Richardson, a girl of the age of fourteen years at the time of the commission of the offense,
The assignment of error is: That the court erred in overruling defendant’s motion for a new trial for the following reasons: First, that the verdict is contrary to the law and the evidence; and, second, that the court erred in decisions of questions of law arising during the progress of the trial. We will consider these assignments in the order stated.
The appellant contends that the testimony is insufficient to support the verdict rendered by the jury, and that the judgment should be reversed for that reason.
It appears that, from the evidence in the case, defendant and his wife adopted the prosecutrix, Mary Richardson, in February, 1916, while they were living in Saskatchewan, Canada. Thereafter they moved to the state of Minnesota, and about January 1, 1920, Mrs. Richardson left for California, where she remained for about seven months. Thereafter defendant and Mary left Minnesota for Texas, where they remained a short time, arriving in Kalispell, Montana, in the month of May, 1920.
The prosecutrix testified to many acts of intercourse between herself and the defendant, commencing in the year 1916, the last act being performed on the twenty-fifth day of June, 1920, the ■ date alleged in the information; that many times he took her to hotels, where they occupied the same room and the same bed. Defendant admits that they occupied the same room at various times, but denies that they occupied the same bed. A further detail of the evidence in this ease would not serve any useful purpose. It is sufficient to say that after a careful examination of all of the evidence in the case we are of the opinion that it warrants the verdict returned by the jury.
The solution of the conflict in the evidence is in the ex-
The story told by the prosecutrix is not unreasonable or improbable. There is corroboration of the prosecutrix in the record. While they were living at Kalispell, one evening the defendant asked the prosecutrix to sleep with him, and he was overheard by several young girls who were there at the time; defendant not knowing they were present.
During the course of the examination of the prosecutrix, she
Thereafter a doctor testified for the state that she had ex-
It is the contention of the defendant that error was committed by the district court because of the refusal to allow the defendant- to ask these questions, and that, inasmuch as the doctor testified to the physical condition of the prosecutrix, he should be allowed to show that she had had intercourse with other persons, and, if possible, break the force of the necessary inference cast against the defendant by the testimony of the physician, citing the case of State v. Apley, decided by the supreme court of North Dakota, 25 N. D. 298, 48 L. R. A. (n. s.) 269, 141 N. W. 740; and that, since defendant could ask prosecutrix as to prior acts of sexual intercourse with others, and the prosecutrix having testified on cross-examination that she did not have intercourse with persons other than defendant, he (defendant) should have been allowed to impeach the girl by asking Mrs. Richardson if she was not told by prosecutrix of sexual acts with others. In other words, the defendant contends that it is proper for defendant to ask prosecutrix as to other acts to rebut the presumption created against defendant by the testimony of the physician, and therefore impeachment of her denial should be allowed.
The real question thus raised by defendant is whether he should have been allowed to impeach prosecutrix by the testimony of Mrs. Richardson. The testimony of the physician was given for a limited purpose. The state informed the court: “That the testimony which the state expects to introduce on the physical condition of the girl will not be directed to fhe fact that the destruction of the membrane or the eon
The evidence of the physician having been given for a specific purpose, as shown by the statement of counsel for the state, the jury must have understood what its purpose was, and considered it only for the purposes for which it was offered. (State v. Francis, supra.)
When the prosecutrix was examined by counsel for the state, no questions were asked about acts. of sexual intercourse with persons other than defendant, and therefore, when defendant examined her about such acts and asked her as to her conduct with other persons, he made her his own witness, and was bound by her answers with reference to those matters not touched upon on the direct examination. (Sec. 10665, Rev. Codes 1921; State v. Smith, 57 Mont. 349, 188 Pac. 644; Mautner v. Brody (Sup.), 120 N. Y. Supp. 734; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883.)
In Bullard v. Smith, 28 Mont. 387, 72 Pac. 761, the court said: “The rule is well settled that a witness cannot be contradicted as to collateral matters brought out upon cross-examination. (Greenleaf on Evidence, sec. 462 et seq.)”
Having made prosecutrix his own witness as to these matters, defendant was bound by her answers, and could not impeach her by the testimony of Mrs. Richardson. (40 Cyc. 2693.)
It is true that under section 10666, Revised Codes of 1921,
Sections 2049 and 2052 of the Code of Civil Procedure of California are the same as sections 10666 and 10669, respectively, of the Revised Codes of Montana of 1921. In construing these sections, the supreme court of California has held that, before a party calling a witness could impeach him,
This court, in construing section 8022, Revised Codes of 1907, now section 10666, Revised Codes of 1921, said: “We think that under the express terms of this statute the state has a right to cross-examine one of its own witnesses where it satisfactorily appears that the evidence has taken the county attorney by surprise, and is contrary to the examination of such witness preparatory to the trial, or what the prosecuting attorney has reason to believe the witness would testify to.” (State v. Bloor, 20 Mont. 574, 52 Pac. 611; see, also, State v. Willette, 46 Mont. 326, 127 Pac. 1013.)
We are of the opinion the district court was correct in refusing the offer, as defendant did not make any showing so as to bring himself within the statute. If the purpose of the offer was to affect the credibility of the prosecutrix by showing prior acts of intercourse with persons other than defend-
In cases where the prosecutrix is above the age of consent,
The weight of authority is to the effect that evidence of
Even though the credibility of the prosecutrix could be attacked by a showing of immorality or unchastity, it could not be done by cross-examination of prosecutrix on matters not brought out on direct examination, and a subsequent impeachment of her testimony, as this is not proof of any fact. The prosecutrix testified she had no intercourse with persons other than defendant. The offer of testimony of Mrs. Bichardson that prosecutrix had told her she had performed such acts with others, if received, would not be proof of such acts. So it is clear that no injustice was, in any event, done to defendant by the exclusion of the testimony of Mrs. Bichardson. Defendant stated to the court he had no evidence of the alleged acts of sexual intercourse of' prosecutrix with others, except the alleged admissions of prosecutrix.
Error is predicated upon certain remarks the court made
"We are of the opinion that there is no reversible error in the record, and that the evidence sustains the verdict of the jury and the judgment of the court.
It is recommended that the judgment and order appealed from be affirmed.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.