State v. Froelich
535 P.2d 658
Idaho
1975
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*1 STATE of Plaintiff- Respondent, FROELICH, Defendant

Alfred B. -Appellant.

Supreme Court of Idaho.

May 5, 1975.

Rehearing Denied June Sharp, Sharp Richard Anderson & J.

Bush, Falls, defendant-appellant. Gen., Atty. Wayne Kidwell, S. Gordon Gen., Nielson, Atty. Deputy Senior Jake Peterson, Atty. Gen., W. Asst. W. James Boise, Gen., Blaine, Atty. Deputy f-respondent. plainti f DONALDSON, Justice. Defendant-appellant Froelich Alfred B. committing a charged with of his by jury was held Oc- female child. Trial prosecutrix, age 15 tober years, testified that father took place his truck to secluded evening County on Bonneville allegedly where he committed Following a he is acts for which entered district court guilty, verdict pursuant to I.C. judgment of conviction *2 years in the Ida- was to 18-6607.1 of Sentence appellant’s and Penitentiary imposed. ho was State pickup was who maintained that the of error assignment sole in night unavailable accused on the sufficiency corroboration challenges the of question. of Further evidence consisted prosecutrix. of statements of the of members that the In of corroboration prosecutrix differently treated the necessary in order prosecutrix’ testimony is alleged during under to sustain conviction place. question, took in During times 504 P.2d v. State prosecutrix many accorded the Ross, (1972); privileges and money the form of v. 449 P.2d 369 State However, clothes. after the incident 462, 464, 7, 1974, disciplined severely. he her 259 P. v. State restricting This included and activities Myers, 94 Ida 2d 1044 In allowing boy not her to see friend. con ho 494 P.2d addition, prosecutrix the acts contended set forth cerning was type complained of occurred on several occa- as follows: sions, purchased that and vaseline used that previously held “This by previous occa- on several prosecuting witness acts, that to commit the and sions direct type may by in a case be vaseline was found truck. surrounding by evidence of or above circumstances While where, at as in the case circumstances appellant, were denied this Court bar, reputation repeatedly credibility held that unimpeached is truth and weight witnesses and the to be accorded contradictory nor not is jury. exclusively their is facts the admitted inconsistent with competent, though there conflict Where is inherently improbable.” verdict, ing, evidence to at Idaho at 494 P.2d reweigh cannot dis that evidence or indicates A reading of record Hall, supra; turb v. the verdict. State not prosecutrix was that Pruett, supra; contradictory to admitted found to be 537, 540, P.2d 43 (1967); State truth facts. Since her Booton, 51, 57, v. issue, put was not proof is needed sustain conviction recognizes This Court no hard and clearly circumstances which subject down on fast rule can be laid her statements. corroborates depend Each case must of corroboration. upon surrounding cir- its own merits and consists of Such evidence Shannon, cumstances. v. State prosecutrix’ sister that the 299, 302, v. him fre State prosecutrix alone with taking Tope, supra. the above facts While quently in his truck while seldom witness, be standing might circumstances Testimony of rebuttal her. enough degree furnish the corrobora- brother, indicated proof necessary to sustain conviction tive crime, above, taken and consid- night question. ing, appealing to, gratifying or child or the lust or minor conduct with Lewd “18-6607. wilfully person passions sixteen.—Any person or or desires such shall sexual who under guilty child, fel- lewdly minor shall of such ony or lewd or commit imprisoned pris- any part or the state shall be or with or acts a term not more than life.” under on for child of a member thereof years, age of arous- with the intent of sixteen However, that evi- this court has ruled together sufficient evidence ered furnish opportunity commit the of- dence of an meaning of the rule. clearly fall within the itself, Vail, fense, by constitute Tope, supra; required to sustain a conviction roboration for a offense. the record Therefore we conclude *3 contains sufficient evidence corroborative by the rule think what is meant “We sus- testimony of the the ‘the facts and circumstances guilty. tain the verdict of the are the commission of offense

Judgment roboration and of conviction affirmed. is that statements of the McQUADE, J., C. and SHEPARD only support testimony they must not BAKES, JJ., concur. person has prosecutrix that of the violated, be of such been but should also McFADDEN, (dissenting). Justice appear proba- a character as to make it respectfully dissent I must ble that the accused committed the of- my opinion opinion majority. It is showing fense. Facts and circumstances at trial to cor- introduced evidence parties together under that the had been prosecuting witness’s testimo- roborate the possible conditions that made it for the a ny presented is insufficient as at trial commission of without satisfy requirement of matter of law to showing other facts and circumstances by this court. corroboration established support testimony that tend to court, prosecutrix, This in State v. is not the corroboration 200, quired first case Mason, 259 1044 P.2d this 41 rule.” State v. 510, the corrobora- 506, 733, which this court considered Idaho 239 (1925). P. 734 pursuant to requirement tion for conviction Short, Accord: State v. 228 18-6607, adopted the rule1 enunciat- I.C. § Jones, 62 P. Idaho Elsen, ed Elsen, (1947): P.2d find (1947). P.2d “If the character or distinguish no reason of- between for truth is unim- fenses and lascivious offenses peached, and is not contra- requirement. terms the corroboration dictory opinion inconsistent the admit- my required nor the evidence ted facts of the not inherent- corroborate a conviction under 18- improbable incredible, ly there can 6607 must tend to connect the defendant corroborating a either direct evidence of the crime in such with the commission probable her testimony, way appear that the surround- as to make it clearly corroborating ing circumstances accused committed the offense. Wharton’s ed., 1972) p. (13th statements. Either will suffice.” Criminal Evidence § Accord: State v. pros- majority The cites The ecuting witness’s sister that prosecuting often took the witness prosecuting a witness conviction testimony of with him in truck and the long standing com- sex-related offense is prosecuting witness’s brother jurisdiction. mon in this law rule prosecuting witness

Anderson, 59 P. 180 ques- night in tion; nature that the yet suggests only This to discuss the opportunity to commit required corroborative had majority cites sustain a conviction under I.C. crime. The pros ground impeachment. been modified ecuting witness’s lack of is not a that the treated members differently during the prosecuting witness

place; suggest

connection between also cites prosecuting used by that vaseline was and las- during commission of lewd prior occasions testimo-

civious acts on

ny prosecuting witness’s sister

she vehi- found vaseline *4 occasions; however,

cle on a review two that the sister testi- record indicates

fied she found the vaseline and

moved on two the vaseline date the prior

occasions committed; thus her can-

were

not be to be corroborative considered is ac-

the incident for which

cused. that, summary, as a matter of think

law, majority as the evidence cited not sufficient to

corroborative is conviction; cite does not connecting If this chooses

to abolish it do so conviction of sex let

directly, indirectly.

George Layh, LAYH and Karleen J. husband wife, Plaintiff-Appellants,

Robert and Continental Acci- JONAS Life & Defendant-Respondents. Company, dent

Supreme Idaho.

April 16,

Rehearing Denied June