*1 are documents show the moving party custody, and control” “possession, BAKKEN, Appellant, John James Young, party. Norman the other rec- I find the 1970). (10th Cir. F.2d 470 Alaska, Appellee. STATE of for factual basis ord devoid No. 1236. out that Wolff made majority’s conclusion Supreme Court Alaska. “possession, of Hart’s prima facie case 1, 1971. Oct. rec- Bowl’s custody, or Arctic control” any policy perceive consid- cannot ords. bases,
erations, for the ma- precedential or test, “influence” adoption of an
jority’s potential, in substitution
either actual custody, or “possession, control” 34. Nor can I
standards of Civil Rule of “influence” and of
agree that notions policies discovery furnish pretrial
liberal discovery adequate
an foundation for the subsequent
order and sanction which were
entered.
Apparently orig- the trial court based its production theory upon
inal order registered Hart’s counsel was Bowl,
agent Arctic appears Inc. This it
clearly impermissible for is established against Rule 34 does not run Civil party. Taylor, for the Hickman v.
counsel
329 U.S.
(1947). say party This is not to
can inspection immunize document from
by turning nonparty long it over to a so party’s remains control. C. Miller,
Wright and A. Federal Practice
Procedure, 2208, at (1970). But §
the case at no bar there is evidence in-
dicating gained posses- Hart’s counsel
sion of the records repre- virtue
sentation Hart.
One further comment. It strikes me
rather battery unusual that Wolff’s of at-
torneys years took approximately five
obtain a decision on the Civil mo- Rule 34 require
tion to produce Hart to the records Bowl,
of Arctic Inc. Equally extraordi-
nary is the fact that Wolff’s counsel never
attempted employ any other available procedures,
discovery subpoena such as a
duces tecum nonparty directed under
Civil Rule 45(d) (1), to obtain the records Bowl,
of Arctic Inc.
I agree with the court’s resolution of
the attorney’s fee issue in this case.
J21 Defender, Carlson, Public Victor D. Defender, Bookman, Bruce Asst. Public A. appellant. Anchorage, for Edwards, Gen., Juneau, Atty. W. G. Kent Ketchikan, for Atty., Hawley, H. District appellee. BONEY, DIMOND, J„ RAB-
Before C. ERWIN, INOWITZ, CONNOR, and JJ. RABINOWITZ, Justice. appeals from Bakken John James statutory rape.1
conviction of the crime of statutory indicted for Bakken was Bessie rape2 15-year-old girl named testi trial, Stevens Wilson. At Stevee Wilson, she, Bakken fied that Bessie that Bessie party together; all at room; that living both left the Bakken from a. m. Bessie in the bedroom was see bedroom m., a. she could not but in or door and did know Bakken Bessie; that had entered the same room “kiddin’ Bessie Bakken had that’s messing around and around and about all.” Bak- that she and testified Bessie Wilson engaged ken into bedroom went Bessie admitted sexual intercourse. prior gave she a statement 11.15.120(2) provides years’ who that one Appellant 2. AS im sentenced to 3 carnally age, years “being knows suspended prisonment, condition person under 16 days and years female abuses he be incarcerated probation guilty consent, age, with her the remainder rape.” years. police drunk; she asserted in which that she was officer he never entered the bedroom Johnstone, had intercourse with not with her her; nor he did kiss and that Jack also testified that on asleep Bakken. Bessie living on the couch in the night m., she was drunk to the room from 3 during a. m. to a. *3 point anything period not where she did care about alleged of time the act of intercourse her, day and that happened place. to the next took everything she could that had not remember Paul Bergeron, witness, a defense stated party. during According occurred to that Bessie kissing had drunk and Bessie, during also drunk Bakken was everybody party.4 at the Three further party. days prior Bessie admitted that five defense witnesses testified that Bakken’s allegedly to the time the offense occurred reputation veracity for and good. truth was away stepmother’s she had run from her appeal, In this Bakken advances a three- home, and at the time of she was First, pronged attack his on conviction. ward point At one in her court. Bakken asserts the trial court committed testimony, Bessie stated she was not sure prejudicial by its refusal to allow any- whether she had had intercourse with his impeach counsel to prosecutrix party, had, during one else if but she asking prior her about her statements that it had been with Jack Johnstone. he was not the father of her unborn child. testified that Bakken David Secondly, Johansen it is contended that the trial kissing petting and Bessie had been refusing court erred in to allow cross-ex- room, (“making living out”) in key amination of a witness for the state thereafter not see either he did of them as to his recent mental condition. Bakken’s According Johansen, to awhile. last assertion error is that the trial court living next time he Bakken in the saw improperly denied his judgment motion for room, something Bakken said about how acquittal. large Bessie was. stated that Johansen began, prosecutor Before trial ad- statement, in an earlier he did not vised the court that Bessie was Wilson exactly, recall said that at he had the time pregnant, prejudicial stated he saw in the reappear living Bakken room any effect outweigh of this evidence would said, Bakken had “Who she been limited relevancy impeaching Bessie’s big. I with? She sure is it from credibility. attorney Bakken’s countered there the time I until I came went out.” stating thought that a physician the date of conceded that assumed Bak- Johansen conception was or about the date of the on referring Bessie, ken had been to but Bak- alleged offense. Bessie had told Since oth- pointed anyone ken had or used Bes- not persons er pregnant that she was but not sie’s also revealed that name. Johansen by Bakken, latter’s argued counsel pro- at he was still time of trial pregnancy fact Bessie’s his regard bation in conviction of any impeach statements relevant contributing delinquency crime she that she had might Wilson, of Bessie and had himself been par- sexual with Bakken at intercourse drunk party.3 at the ty. theory The if was that Bakken and did Appellant Bakken testified that he intercourse, she had had she not could not have with Bessie sexual intercourse father, her know that he not the so Wilson, any nor make statement to did he implied statement was not that he that she way Bessie’s Accord- concerning By had not had size. intercourse him. of rejoinder, prosecutor said that ing Bessie party, to Bakken’s Bessie version of woman, especially large According Johansen, not for an adult Bessie Wilson or small. Phyllis party. was also drunk Dr. Bergeron Smith she had testified examined that Bakken was also testified night question. vagina Bessie’s it was not drunk on the normal size
J23
well,
Very
that her
MR. STUMP:
Your Hon-
testify
intercourse
would
or,
interruptus,
her
intend
coitus
so
do
it.
had been
waive
Bakken
con-
belief that he was
the father
THE COURT:
deem
they had
her
sistent with
pertinent.
question.
the date in
intercourse
argues
The state
the court’s
court ruled:
ruling precluded
dis
Bakken’s counsel from
Well,
time I’ll
at this
THE COURT:
cussing
opening
the statements in his
state
e.,
prosecu-
objection
sustain the
only
[i.
ment
if he
be
made
statement
by Bak-
tor’s
reference
presented
fore
state
its case. Since
as to Bessie’s statements
ken’s counsel
opening
counsel for Bakken
state
saved
*4
to
the father
her unborn
was
case,
who
presented
ment until after the
its
state
*
* *
him,
ruling
it
did not bind
so if was
child]
error,
agree.
was
harmless. We
you.
Thank
HAWLEY:
MR.
view,
barred the use
our
trial court
*
**
because
THE COURT:
prior
only if
of Bessie’s
statement
counsel
to
necessity
there’s no
nor is it relevant
preceded
opening
for Bakken’s
statement
previous unchaste character on
show
presentation
If
of the state’s case.
there
quite
part
Complainant.
I don’t
of the
error,
then it
harmless under
was
at,
getting
what the defendant is
follow
47(a),
counsel saved
Criminal Rule
because
at
say
objection
I’ll
and as I
sustain the
the state
opening
his
statement until after
through
this time even
the defendant’s presented its case.5
brought
opening
may
statement.
It
be
essentially
Bakken was convicted
up
say
again,
on cross examination or
that she
testimony
of Bessie Wilson
may
like that
it
rele-
something
where
be
him, and David
had sexual intercourse with
stage
proceedings
vant
at this
of the
but
testimony
remark
that Bakken
Johansen’s
it
appear
it
to
doesn’t
the Court
vagina
ed on the size of her
and said
got
would be relevant as to who she said
questionable
he had been
it. Due to
pregnant.
her
It makes no difference
testimony,
quality of Bessie Wilson’s
Jo-
later on it’s
that it’s some-
unless
shown
role in
a crucial
hansen’s evidence assumed
thing
credibility,
that attacks the
but
the conviction
Bakken.
can’t see it at this time. At this time I’ll
may bring
you
sustain
cross-examination,
counsel
Bakken’s
On
it
it
on if
up later
becomes—seems
undergone
you
Johansen,
asked
“Have
”
pertinent
become
then.
recently
Coun-
?
psychiatric examination
Thereafter, out
objected.
Very well,
MR.
Your Hon-
sel for the state
STUMP:
counsel
presence, Bakken’s
jury’s
or.
of the
proof:
made this offer of
But
it at
THE COURT:
I’ll sustain
running
time,
testify that he was
including
opening
statement
He will
* *
city
Arena
around in the
of Point
opening
make the
statement now.
request-
naked;
commanding
If
it at
after
his
officer
waive
this time until
* * * psychiatric
case,
undergo
puts
why
on
we
ed that he
its
then
State
* * *
so
he did
at least and
up
could
it
then.
examination
take
* * n Moreover,
prior
it is
that Bessie’s
It
is clear
statements
sideration.
restricting
hoped
instead of
was not
that Bakken
the father
prior
mechanical
statements
he
inconsistent with her
tes-
use of
treated as
inconsistency,
timony
the test
had
she
sexual
intercourse
use
receiving
party.
may
such
appellant
lean toward
McCormick
courts
at
doubt,
aid
says
in case of
statements
testimony.
evaluating
ambiguous
previous
if the
statement
McCormick,
according
meaning
§
Evidence
to one
would
omitted).
testimony,
(footnote
(1954)
inconsistent
jury’s con-
should be admitted for the
psychiatric
was all that
the Point
one session
his
examination and
period
think—I
in-
properly
relate this to
Arena
trying to
incident was
excluded.
he had.
I’m
given
prove
say
if I
Here we cannot
reasons
because
can
that the
toxication
he
running
around and
he was
trial court for the exclusion
that time
intoxicated,
proffered
has a direct
clearly
I think
unreasona
evidence were
[it]
way
going
his
ble
bearing
or untenable.6
a more informa
Given
credibility as to the
run,
concerning
his
proof,
as affects
tive offer of
question.
night
psychiatric
recent
examination
Johansen’s
and the Point
Arena incident would
objection on
sustained
The trial court
proof
If
admissible.
the offer of
ground that
disclosed that
from some
suffered
either
just
one instance when
mental
rendering
aberration
his observation
something around
drunk
went
memory
alleged
admission
Bakken’s
* * *
then
the streets naked
psychi
unreliable due
a combination of
psychiatric examination
[was]
problems
intoxication,
atric
then such
credibility in
to attack
insufficient
For it is
would be admissible.
this case.
clearly open to the
that be
defense
show
abnormality,
cause
*5
proof,
of some mental
the
Bakken’s offer of
On
basis of
Johan-
ruling,
capacity
perception
and
argues
judge’s
the
that the trial
sen’s
accurate
state
excluding
question concerning
impaired.7
pri
recollection
the
the
Since
Johan-
examination,
mary purpose
should
psychiatric
sen’s recent
of such
would
the
evidence
be
running
legitimate
impeachment by showing
be sustained because
one of
Johansen’s
California,
Arena,
inability accurately
around naked in Point
perceive
and remem
particular
act,
wrongful
admission,
was a
not ad- ber
in
purported
Bakken’s
the
impeachment
missible for
under
Rule
showing
particular
Civil
cidental effect of
act,
applicable
43(g) (11)
wrongful
namely,
which is made
naked
[b]
Johansen’s
to criminal
under Criminal Rule 26
cases
Arena,
exhibition
Point
would not ren
(a).
“particular wrongful
acts” doc- der such
evidence inadmissible.8 In
provides
“may
trine
that a witness
not be
bar,
case at
neither the fact of Johansen’s
by
impeached
particular wrong-
of
evidence
psychiatric
examination
itself nor
**
acts, except
ful
may
that it
be shown
combination
Point Arena incident
that he has been convicted of a crime.”
proof
constituted a
as
sufficient offer of
unreliability.
testimonial
We
Johansen’s
precedents
think that under our
We
therefore hold
properly
that the trial court
proof,
and
of Bakken’s offer of
basis
concerning
prosecution’s
sustained
cross-examination of Johansen
State,
689,
507,
State,
8. In
In Lewis v.
469 P.2d
695
Smith v.
431 P.2d
510
(Alaska
(Alaska 1970),
1967),
held that one test
we said :
we
the trial court abused its dis-
of whether
objective
the main
to be served
When
by
ruling
admissibility
cretion in
on the
of
legitimate
cross-examination
is
given for
evidence is whether
the reasons
permissible
here,
then the fact
is
clearly
of
are
un-
the exercise
discretion
particular wrongful
are also
acts
unreasonable.
tenable or
merely
suggested
be
or established would
Institute,
prevent
incidental
not
Law
Model Code
and should
See American
objective
legitimate
106(1),
c(l)
primary
of
and comment
of
§
Evidence
by showing
impeachment
(1942);
from
of
bias
National
Com-
Conference
omitted)
(footnote
being accomplished,
Laws and
missioners on Uniform State
Association,
v.
Smith
in Gafford
Uniform Rules
followed
American Bar
1968) ;
(Alaska
(1953) ; Ladd,
State,
405,
Evidence,
P.2d
408
Rule 20
440
of
State,
Credibility:
P.2d
450
Im-
McCracken v.
439
Some Observations
(Alaska 1968) ;
Kugzruk
Witnesses,
peachment
52
L.W.
of
Cornell
(Alaska
Wigmore,
(1967) ;
n.
24
§§
Evidence
J.
1968).
(1940) ;
Wigmore,
Evi-
See also Watson
3A J.
1963).
1970).
(Chadbourn
rev.
dence §§
case, Bakken
resting
to whether
After
his
asked
acquittal
recently undergone psychiatric
judgment
exa
he had
moved for
grounds
insufficiency
mination.9
evidence
appeal
motion was denied. On
Bakken
facet
One other
of Johansen’s
argues
have been
motion should
point.
testimony should
to at this
be alluded
granted
prosecutrix’s
accusa
because
mandatory that
Rule 30 makes it
Criminal
her
tion that Bakken had intercourse with
in its
instruct
court
cor
should
have
been believed without
party
that the
are to be
oral admissions
roboration,
provided
and the corroboration
provides
viewed
This
with caution.
rule
inadequate.
that no
argues
The state
part
required,
corroboration was
or even
.it
**
*
jury.
shall
court
instruct
was,
adequate
found
corroboration is
******
the record.
(2) That
the oral admissions
determining
judgment
motion
party
[ought
viewed]
guided
acquittal,
judge
trial
caution.
following
criteria:
If
such
reasonable
the evidence
Given
closeness
the case
***
jurymen
necessarily
must
have
importance
of Johansen’s
re-
doubt,
judge
must
[reasonable]
admission,
concerning
purported
Bakken’s
quire
acquittal,
no other result
because
we believe that
failure to
court’s
permissible
within the fixed bounds
mandatory cautionary
instruction
ifBut
a reasonable
consideration.
obviously
prejudicial10
so
that we
might fairly
mind
a reasonable
despite
choose to notice the
the ab
point
one,
fairly
*6
might
doubt or
not have
any objection
sence
part
of
of Bak-
case
is
jury,
is for the
and the decision
ken’s
study
On the basis
our
counsel.11
* * *
jurors
for
to
the
make.
record,
of the
plain
we hold that it was
rule,
error12
part
on the trial
to
court’s
not
have
that a trial
therefore is
true
* *
instruction,
given mandatory cautionary
the
judge,
passing upon a
in
motion
and further hold
of this
that the omission
determine
[judgment
acquittal, must
of]
evidence,
instruction
upon
giving
cannot be characterized
full
whether
the
harmless error.13
deter-
play
right
jury
the
to
decisions,
requirement
9.
In a series of
we have
recent
It
this
has been held
emphasized
great
liberality
not
be raised below does
given
prevent
plain
application
defense
in
counsel
cross-exam
the
the
prosecution
charge
ination of a
with re
witness
the
resulted
rule where
court’s
spect
testifying.
Tillery
miscarriage
justice.
to his bias or motive
v.
in a
State,
47,
States,
644,
In re Doe v.
487 P.2d
58
411 F.2d
647-648
United
(Alaska 1971);
States,
State,
1969) ; Herzog
(5th
RLR v.
487 P.2d
v. United
Cir.
27,
(Alaska 1971)
State,
;
(9th
1956),
664,
44
Whitton v.
235 F.2d
666-667
Cir.
302,
(Alaska 1970).
denied,
479 P.2d
316-318
cert.
352 U.S.
S.Ct.
77
Compare
State,
(1956).
Freeman v.
967
486 P.2d
See
Daniels
also
L.Ed.2d
(Alaska 1971).
1964).
(Alaska
State,
v.
to be corroborated all cases, anybody, only but I in those cases where the pointed He never or incredible, equivocal, testimony he meant victim’s is would have assume that impeached. think the ac- has been Bessie.16 We adequate- interest a fair trial cused’s was studying after Despite foregoing, ly safeguarded by the which instruction entire record and inferences to be drawn In this gave court on this issue. light therefrom in the most favorable regard, instructed that: state, that fair-minded we have concluded judgment to a conviction the exercise of reasonable It is essential men is testimony the minor child who could differ on the of whether beyond be corrobo- prosecuting a witness guilt Bakken’s was established [the] evidence, provided that rated other reasonable doubt.17 therefore conclude We you are all the evidence convinced properly court denied Bak- from beyond de- acquittal. reasonable doubt judgment ken’s motion for However, guilt. charge fendant’s holding this Our issue neces against statutory rape such made sarily embodies the further conclusion that case, gen- is one which defendant prosecutrix’s ac no corroboration of the made, easily and, once erally speaking, is required statutory rape cusation is cases. made, disprove, if the even difficult appeal, argued In this Bakken has that his Therefore, I is defendant innocent. acquittal judgment motion requires the law been granted because Bessie Wilson’s testimony the minor examine the testimony her that he had intercourse with * * * child caution. cor should not have been believed without and commitment entered judgment pro roboration, and that the corroboration remanded below is reversed and matter argues inadequate. vided The state for a trial. new required, that no or even corroboation was was, pro if it adequate corroboration ERWIN, (dissenting). vided. Justice show, parties As the there briefs of the portion from that of the ma- dissent authority against re- good both for jority opinion holds the failure which quirement prosecu- of corroboration appel- as to cautionary instruction case, statutory rape trix’s in a plain lant’s admissions alleged out-of-court equivocal or in- least her where error. impeached. On credible or she ordinarily consider This court will hand,
the one false are common accusations only issues appeal criminal those disprove in On these cases. difficult to excep- An presented properly below. *8 hand, may be im- the other corroboration made, however, are char- tion for what is rape possible in a non-forcible situation. “plain in order to errors” acterized are state’s agreement in with the adversary sys- We of an lessen the harshness required position by corroboration was in an accused is bound tem which present in the adequate is inactions) corroboration of his counsel where (or actions hand, un- However, exception we remain justice record. On the other demands. adopt a rule persuaded that we should to the rule. must not be allowed become resources, requires prosecutrix’s system which of judicial limited City 14, supra. 16. We read 17. v. of cannot Dr. Smith’s See note Martin 462, (Alas- Fairbanks, as corroborative of Johansen’s statement 456 P.2d 464-465 State, supposed 1969). Compare All about Bakken’s ka 456 admission. Shafer v. Dr, 1969). 466, (Alaska stated was that Bessie’s 469 Smith P.2d vagina adult was of normal size for an woman, girl age and which a of Bessie’s experience doubtless was. 128 harm, finality is in- principle do not but it is doubtful whether necessary of they help. are perfect trial much The sounder a demand for
consistent with perception appellate errors be is that when an demand that (or even Furthermore, of an notice court take notice error “harmless”).1 potentially raised non-objected-to, below must made on the appeal every case, error, particular ob- facts of the the failure to there are whether harmful ‘hard and in strategy, ignorance no fast classifications either ject or was due application premium principle on incom- of the or place a the use oversight, would descriptive Indeed temptation ignore error at title.’ the cases petence. The ‘plain obtaining impression distinct a means trial in order concept appellate is a error’ courts find judgment of an adverse a new in case define, impossible they save know would be real. they it when see it. attempt In an to strike a balance between Wright, 3 Federal Practice Procedure justice for of the accused demands (footnotes at (1969) omit- § public, struggled courts have to de- ted).2 appeal fine of error first the kind noticed they for At least one error, which will reverse. A plain fruitful field for and the questioned has usefulness here, commentator one involved is the instructions. It is attempts these definition: always possible almost to frame a more accurate actually instruction than one put gloss Courts have endeavored to given, or to assert that certain instructions by error [plain defining rule]' requested neither given nor were essential they kind error which can reverse * * jury’s proper spe- deliberation. The ‘plain Thus it is said *. error’ cific obstacle to postmortem this kind of means ‘error both obvious and substan- Criminal provides Rule 30(a) part which tial,’ ‘seriously prejudicial error,’ or that: ‘grave seriously errors affect sub- rights stantial Perhaps party accused.’ may assign No any por- as error attempts
these ‘plain to define error’ tion of the or omission therefrom problem language This has assumed im- increased The used this court in Love portance complexity increasing with the State, (Alaska 1969) v. 457 P.2d procedure lamenting of the expanded upon law criminal and the the reliance mechanistic guarantee questions institutionalized dealing formulae with guilty After applies equal counsel. a verdict of “harmless error” with force returned, counsel, newly-re- dealing often conterpart, in “plain with that doctrine’s tained, comb record at leisure error”: imagine “error”. It is hard to legal A formal statement of rules is of any length a trial of such a search would little value unless we know methods fruitless. operate practice. which those rules pragmatically only What matters “obviously portion This court has utilized the of the formal that survives rule prejudicial” State, judicial apparatus standard [Bowker v. after has done (Alaska 1962); Kug 373 P.2d its work. State, (Alaska application zruk 436 P.2d of the harmless error 1968)], miscarriage jus plain given the “manifest [or rule rule] tice” judgment, standard [Rank is a case broad act of (Alaska 1962); implies. Dimmick v. all the term It is not 1969) ; easy express in mechanistic verbal *9 State, (Alaska 466, comprehending Shafer v. 456 P.2d a 467 formulae rule the 1969)], many “obvious the and substantial factors that which motivate act of State, impression judgment. interplay error” [Dimmick definition v. 449 The of (Alaska 1969)], analysis, experience legal P.2d and 776 the and the and “deprivation right” necessity philosophy judge, of a substantial test the of the State, (Alaska competing interests, [Thomas 391 20 P.2d balance between 964) ; State, 1 Noffke v. 422 P.2d a detailed of the consideration ; (Alaska 1967) State, case, 106 in Goresen all contribute actualities each 1967)]. (Alaska inevitably P.2d 326 to the result. he the he wishes stress and those before dence objects he thereto unless subordinate; fundamental fair- verdict, stating wishes to its jury retires to consider objects ordinarily not Before an matter to ness is involved. distinctly the which type can error as to this of instruction objection. of his grounds and the “plain”, be the court should be found to 30(b) The conflict between Criminal Rules that clear- strongly prejudice convinced impression 47(b) is obvious. first On ly appears. the cases indicate than an hoc little more ad cautionary in- the instruction Because approach in the resolution of this conflict. the latter cate- volved herein falls within However, suggests a closer examination perceive I no clear in- gory, and because analysis method of based recogni- reluctantly prejudice, dication of I must tion that there are charges: two kinds of ap- disagree my colleagues as to the (1) every trial, those basic to criminal plication plain error rule in this namely, the elements of charged the crime case. concepts process, and the involved due proof such as burden of presump- jury and the the con Instruction 224 cautioned innocence; tion of (2) problems statutory of cerning those concern- defense ing the proce- rapé evidence adduced and Instruction noted that cases. particular appellant presented good dures followed in the The evidence trial. of fundamental, former instructions are was further instructed jury basic character. charges, the plain they carefully weigh omission of that all testi which is were to demeanor, motive, an intelligent mony according absent In waiver.3 latter, however, intelligence we deal with trial and candor of the counsel’s witnesses.6 case, Finally, conduct of the attorney both the district and de- elements or evi- may (Alaska Drahosh v. Such evidence indicate to the 1968) (duplicity impossible charge) ; person it is that a of Noffke v. good crime character would commit the 1967) (supplemental Therefore, charged. should instruction on ele offense). along ments of consider this evidence with all other evidence this case in determin- Instruction 22 reads : as follows ing guilt or the innocence of It is not essential to a conviction that defendant. testimony of the minor child who is may be The circumstances such prosecuting by witness be corroborated may good alone character evidence of evidence, provided other from all doubt of defendant’s create reasonable you beyond the evidence are convinced guilt, although evi- without other a reasonable doubt of the defendant’s However, convincing. would be dence guilt. However, charge statutory reputation good should not evidence rape against such as made the defendant acquit de- constitute an excuse fendant, case, generally in this is one which jury, weighing after all if the speaking, easily made, and, made, once including evidence, the evidence disprove, difficult to even if the defend- beyond character, good is convinced Therefore, charge ant is innocent. guilty that defendant is doubt reasonable you requires the law charged in the Indictment. of the crime examine the of the minor child with caution. : reads as follows 6.Instruction giving instruction, I do not judges jurors, You, are the sole imply my opinion mean to an own as credibility of the witnesses the weight credibility witness. A wit- deserves. their The fact here is one speak presumed the truth. ness is disprove difficult should not deter outweighed may presumption But this rendering guilty from a verdict of by witness the manner j'ou beyond are convinced a reasonable testifies, testi- the character guilty doubt the defendant contradictory given, mony evi- charged. carefully scrutinize You dence. testimony given, the circumstances 5. Instruction 24 reads as follows: testified, witness Defendant has which each introduced evidence of under good every reputation community in evidence which matter in his *10 prior the witness whether indicate Indictment this case. tends to closing argument stressed fense counsel credibility of the vari- primary issue in
ous witnesses
case,7 defendant should and that did not
acquitted jury if the believe Bessie
Wilson. simply agree that in
I am unable to closing
context instructions and the by
argument in this that the failure case cautionary give
court instruction con- prejudice appellant such
stituted
to call for the of this court intervention
without below.
Joseph BARGAS, Appellant, Alaska, Appellee.
STATE of
No. 1204.
Supreme Court of Alaska.
Sept. 27, 1971. worthy tion, experience. of belief. is not an uncommon Consider each wit- weighing intelligence, discrepancy, motive, ness’s the effect of a and state of mind, pertains and demeanor and manner while consider whether it to a matter stand, importance unimportant detail, or an and his or her character as by discrepancy shown the evidence. whether Consider also results any may relation from innocent error or each wilful falsehood. witness bear to case; you presumption either side of the the manner in If find the truth- outweighed might by each witness fulness to as to wit- be affected verdict; which, testimony ness, and the extent to if will of that all, credibility, any, supported each witness is either witness such may or contradicted other evidence. think it deserves. discrepancies Inconsistencies or in the testimony Tillery witness, or between the v. United Unlike situation witnesses, may (5th States, of different 411 F.2d Cir. may 1969), majority, not cause the to discredit relied on the in- such testimony. persons Two or more made it clear that the wit- here structions nessing may an incident or a believe the transaction was not bound to differently; prosecution see or hear it witnesses. innocent misrecollection, like failure of reconec-