State v. Patchen

Rudkin, J.

The defendant in this cause was convicted of the crime of rape upon a female child of the age of ten years. Prom the judgment and sentence of the court this appeal is prosecuted. It will be unnecessary to refer to the testimony, except for the purpose of explaining the ruling of the court in excluding evidence on cross-examination, to which an exception was taken.

(1) The offense was committed in a room occupied by the appellant. There were present at the time, the appellant, the prosecuting witness, and two other children of the ages of eleven and twelve years, respectively. The three children went to the room together, and remained there but a very short time, during which the crime is alleged to have been committed. One of the children, other than the prosecuting witness, was a witness for the state at the trial. Counsel for appellant asked her on cross-examination, in substance, if the appellant committed the same crime upon her, at the same place', and immediately after the commission of the crime against the prosecuting witness, for which the appellant was on trial. The court sustained an objection to this question, and an exception was allowed. Counsel for appellant immediately repeated the question in a slightly different form, and the witness answered: “Yes, sir.” After the question was answered, the couih, of its own motion, sustained the objection, and cautioned counsel not to proceed further along that lina The answer of the witness was permitted tO' stand; the appellant had the full benefit of the answer; and it was no doubt the answer he expected, as his counsel adverts to this answer in bis argument to this court. There was, therefore, no ruling of the trial court which can be reviewed in this court. We do not desire to be understood, however, as approving the ruling of the trial judge in thus restricting tire cross-examination of these three witnesses. Under tho circumstances of this case, we think the appellant should have been permitted to interrogate all these witnesses fully, as to everything that transpired in the room during the brief time they were there, for the purpose of testing their credibility, and for the further purpose of showing the improbability of the truth of their testimony, if he could. The fact that such cross-examination tended to prove the commission of another crime was no valid objection.

(2) Counsel excepted to the following instruction given by the court:

“One may be convicted of the crime of rape upon the unsupported evidence of an infant under years of discretion, if the jury is satisfied that the evidence is such as to leave no reasonable doubt of guilt.”

Counsel has failed to point out any error in this instruction, and the court discovers none:

(3) Error is assigned because the court unduly limited counsel in his argument to the jury. The record shows that, at the close of the testimony, the court gave counsel fifteen minutes on each side in which to complete their arguments to the jury. Counsel for appellant objected to this limitation, and the court thereupon allowed counsel for appellant twenty-five minutes, and counsel for the state twenty minutes. After counsel for appellant had consumed the twenty-five minutes allowed by the court, the court informed him that he would be allowed ten minutes additional. Counsel refused to proceed further, unless the court would permit him to occupy this additional time after the close of the closing argument for the state. Under these facts, we do not think that the appellant can complain of the limitation fixed by the court, for the reason that he did not occupy all the time accorded to him.

Complaint is made of the severity of the sentence. The sentence seems unduly severe, in view of the advanced age of the appellant and the character of the prosecuting witness and her associates, as disclosed at the trial. But this question is not. subject to review in this court.

Binding no reversible error in the record, the judgment is affirmed.

Mount, C. J., Dunbar., and Hadley, JJ., concur.

Root and Crow, JJ., took no part.