53 Mich. 531 | Mich. | 1884
Respondent was convicted of rape. The offense, if commited, was done while respondent had the young girl, who was the subject of it, apart in her chamber for the purpose of examination and treatment for some female difficulty. According to her story, he used locally some articles which, it is supposed and testified, might prevent some significant appearances and consequences, which would otherwise have been likely to become manifest. Her account, if true, made out a clear and aggravated case. He, in his sworn statements, denied any sexual intercourse of any kind. There was nothing in the case which could relieve the jury from believing one or the other of these witnesses upon the question of intercourse, and it is difficult to see how any complicated issues could arise. In this conflict the circumstantial evidence became essential in aiding the jury to determine which was to be substantially credited, and upon this there was therefore a contest upon the trial, and there were facts open to comment. There was the testimony of physicians who made a personal examination shortly after, which, if true, made it reasonably certain that she had been violated by some one; and, so far as the record shows, there was no testimony pointing in any other direction as to the person who did the act. It appears, however, that other wit
Objection was made to the testimony of the mother in showing that on the next day but one after the occurrences the appearance and behavior of the girl were such that she insisted on knowing what was the matter, and the daughter told her what had occurred. We think this was admissible under the previous rulings of this Court, referred to on the argument. In all such cases it is desirable to know how soon or in what way the outraged person complains. Its force ife for the jury. In the present case the mother had directed, if not compelled, the daughter to submit to medical treatment of a necessarily unpleasant nature, and had been induced to leave the room. It was after an interview with respondent that., the mother had herself caused, and in connection with appearances, and a shame-faced look in the child, that she made the inquiry, which it was certainly her duty to make, and which it was as proper to show. The jury were not, so far as we can see, allowed to be misled into giving this testimony any further force than legally belonged to it. It was, to a certain extent, a part of the transaction or res gestee, which, in rape cases, according to most of the authorities, would1 include such accounts of the recent crime as are to be expected from the injured woman. We do not think the ruling was erroneous.
Two further objections to answers required by the court to be given by a medical witness to certain interrogatories require more attention, because they were not such as he could properly be called on to answer, and he strongly objected to them as not involving medical science. That they were improper is too manifest to bear discussion. But it is not so clear that the answers worked any legal wrong.
One of them occupies two full printed pages, and asks the doctor whether, in his opinion, the facts assumed in the
The long question, however, assumed as facts in the hypothesis all that the girl had shown in her narrative of the offense, including all the circumstances attending the respondent’s visit, and his previous preparations and subsequent appearances. It was very properly, objected by the witness that this called on him for an opinion which would not be a medical opinion.
The case indicates that this was not the only similar instance, and the practice of presenting such hypotheses by counsel to witnesses is worthy of strong condemnation. In most cases it asks a witness to usurp the functions of the jury, and may often lead them to disregard their own functions and accept conclusions which they should form for themselves. But it may also be observed that another result, even where the question involves science, is nearly as dangerous. No opinion on a scientific question can be of any service to a jury, either in giving them direct knowledge, or in enabling them to compare opinions, unless they know just what elements enter into the opinion. Human memory is not usually so tenacious that a question of such great length, involving many distinct facts or elements, can be fully remembered by a witness to whom it is propounded on the stand, and it is practically unlikely, if not impossible, that when he answers it he answers it in view of all these separate elements. He necessarily answers it by assuming for himself what is material and what is immaterial, and if he were at the same time to show what matters he has eliminatéd, there could be no difficulty in ascertaining what is needed, and testing all witnesses by the same standard. But where this process is repeated by different witnesses, they may not all act on- the same basis, and conflicts of opinion will appear, which are more apparent than real. In science, as everywhere else, all inquiries should be brief and
The remaining questions relate to the charge. It was very long, and most of the errors assigned are due to this, as various parts have been dwelt on as indicating misleading directions. There were no requests denied that were not, so far as they were proper at all, covered by the charge as given. The essence of the exceptions is that it was an argumentative charge, bearing very strongly against the respondent. We do not, however, think that it is quite fair to select out single passages and deal with them as if they were independent. The method of excepting was to cut up this voluminous charge into paragraphs, such as counsel chose to divide up, and treat each of those so-called paragraphs, although sometimes not entirely relating to one part of the subject, as a minor and distinct charge. Even in this way the exception referring to such a paragraph frequently leaves us in doubt just what was aimed at. But, although this is bad practice, we have nevertheless looked into the whole charge, and are disposed to consider all that was urged on the argument as affecting it. We have done so, because the charge itself is much beyond the ordinary scope of charges usually given in cases involving so short an inquiry. We are obliged to see, practically, that the only real dispute was whether the girl told the truth. About this simple issue there was made up
We affirm the'judgment.