76 P. 788 | Idaho | 1904
This is an appeal from the district court of Nez Perce county. The county attorney filed an information in said court charging the defendant with the crime of rape, to wit: “On the twelfth day of February, 1903, at the county of Nez Perce, in the state of Idaho, the aforesaid Eavid Harness then and there being committed the crime of rape by then and there feloniously, with force and violence making an assault upon one Rosa Harness, who was not then and there the wife of the said David Harness, and did then and there feloniously ravish and carnally know and accomplish with her, the said Rosa Harness, an act of sexual intercourse by force, violence, and against her will and resistance, contrary to the form of the statute in such case made and provided.”
The defendant was tried upon this charge and on the seventh day of November, 1903, found guilty of the crime of rape. On the seventeenth day of November he was sentenced to a term of fourteen years in the state penitentiary. On the twenty-seventh day of February, 1904, an order was made and entered thereafter by the court, overruling defendant’s motion for a new trial. On the second day of March, 1904, defendant perfected his appeal from the judgment; also from the order overruling the motion for a new trial.
Counsel for appellant offered to show by Nancy Harness, mother of defendant and William Harness, that about the time the engagement was terminated between defendant and Anna TJhri, that she went to the upstairs room of her son William and found Anna Uhri and her brother Frank in bed together, and she immediately reported her discovery to defendant, who went upstairs and threw Frank out of bed, upbraiding him for his conduct. That Frank came downstairs and was sullen and angry about his treatment from defendant, and that thereafter the relations between Frank Uhri and defendant were unfriendly. Counsel offered to prove the same state of facts by the younger brother, Ed. Harness, who it is shown was present at the time above indicated. Before offering to prove the above state of facts, counsel for appellant stated to the court that the theory of the defense was that there was a conspiracy on
Under this statement of facts, should the court have permitted the witnesses to testify as to the past conduct of Anna Uhri and Frank Uhri?
Our attention is called to a recent decision of the supreme court of Kansas. (State v. Abbott, 65 Kan. 139, 69 Pac. 160.) “John Abbott was prosecuted upon the charge of rape committed on the person of Desdemonia Horrolson, a girl under eighteen years of age, and he was convicted of an attempt to commit that offense. Mrs. Sadie Stutzman was the mother of the girl and the prosecuting witness. It is claimed that the defendant and Mrs. Stutzman had been unduly intimate for several months prior to the commission of the alleged offense, and that their illicit relations had been brought to the knowledge of her husband; that Mts. Stutzman met the defendant in the woods near her house in the absence of her husband and demanded money from the defendant, which was not furnished; and that then she began the prosecution against the defendant for the offense against her daughter. She claims to have known of the alleged offense within a few hours after its commission, and it is said she made no complaint for more than .a month, nor until the demand for money was refused. It is claimed by defendant that the prosecution was malicious. - . . . After she had testified in behalf of the state, she was .asked on cross-examination if it was not a fact that from October of the previous year until a few days before demanding the money from the defendant, she had met him in the timber near the house and had illicit relations with him; but the court, on objection of the county attorney, excluded the testimony. .... It was competent for the defendant to cross-examine the witness as to her antecedents, character and past conduct, .and thus impair her credibility. This line of inquiry became important because of the contention that the prosecution was
The same court, in State v. Greenburg, 54 Kan. 161, 53 Pac. 61, lays down the rule in the syllabus as follows: “For the purpose of proving the character and credit of a witness, he may be cross-examined as to specific facts tending to disgrace or degrade him, although collateral to the main issue, and touching on matters of record. Such an inquiry is only allowed for the purpose of honestly discrediting the witness, and there is reason to believe that it will tend to the ends of justice.” In support of this rule this case cites State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan. 310, 26 Pac. 749; State v. Wells, 54 Kan. 161, 37 Pac. 1005; State v. Park, 57 Kan. 431, 46 Pac. 713; Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496; Brandon v. People, 42 N. Y. 265.
The attorney general insists that the witness, Anna Uhri,. did not come within the rule laid down in the cases above referred to, and in support of his contention cites sections 6082 and 6083, Revised Statutes of Idaho; also State v. Anthony, 6 Idaho, 383, 55 Pac. 884.
Section 6082 says: “A witness may be impeached by the party against whom he was called, by contradictory evidence,. or by evidence that his. general reputation for truth, honesty or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony.”
Section 6083 provides that: “A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this-can be done, the statements must be related to him, with the circumstances of times, places and persons present, and he must, be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must-be shown to the witness before any question is put to him concerning them.”
State v. Anthony, cited by the attorney general, has no application. In that case it is said by the court: "An attempt was made to discredit and impeach the defendant, by contradicting him in regard to a particular act that had not the remotest connection with the crime of which the defendant was charged and convicted. An attempt was made to discredit the witness on a matter entirely irrelevant to the issue then being tried. After a careful review of the record and an examination of all the authorities cited, we are of the opinion that the court should have permitted this evidence to go to the jury to aid them in determining whether the prosecution was in good faith, or to gratify a feeling of malice and revenge on the part of the witness, Anna Uhri.”
Assignments Nos. 24, 25, 26, 21, 28, 29, 30, 31, 32, 33 and 34 are grouped together and argued as one assignment by counsel for appellant, under the head of misconduct of the county attorney in his argument of the case to the jury and errors of law wherein the court permitted such argument. The county .attorney was permitted to say: “Gentlemen of the jury, I say to you now that if you are ever called upon to meet with such
It is shown by the record that counsel for defendant objected to each and all of these statements, which objections were overruled by the court with the statement that “It is a conclusion drawn by the attorney from the evidence. You should not interrupt the county attorney in his argument; the court will allow you an exception to all remarks prejudicial to the defendant at the conclusion of the trial, or in case you propose a statement.”
It is clear to us from the argument of the county attorney that he was filled with enthusiasm and unquestionably made statements that ordinarily he would not make, being the prosecuting officer of his county. We do not believe he would advise or encourage mob violence; under any conditions such advice would be dangerous to the peace and good order of the state. His oath of office as the prosecuting officer of Nez Perce county requires him, among other things, to prosecute all persons charged with violating any of the laws of the state within his jurisdiction, and he, as such prosecuting officer, could not justify his remarks to the jury. It is immaterial what prompted
The court erred in the statement that "It is a conclusion ■drawn by the attorney from the evidence. You should not interrupt the county attorney in his arguments. The court will grant you an exception to all remarks prejudicial to the defendant at the conclusion of the trial.” It was the only time counsel for the defendant could protect his client from the danger of the statements of the prosecuting officer. The injury, if any, was in allowing the remarks to go to the jury. After the close of the trial it would only be effectual in this court, unless the court meant to convey the idea to counsel for defendant that after the close of the argument he would call the attention of the jury to the remarks of the county attorney and instruct them that in their deliberations they must not be influenced by such remarks. The record does not disclose that such was ■done, hence we infer that they went unchallenged so far as the jury was concerned.
Can it be said that the statements of the county attorney that men charged with or guilty of the crime for which defendant was upon trial should be strung up by the neck, or have their brains blown out; that he would blow his brains out under similar circumstances, and if the husband had done his duty he would have taken his gun and blown his brains out; that he as a peace officer of the county would not prosecute one for •such an offense — had no weight with the jury? We think not. In •a very recent decision of this court in State v. Irwin, reported in 9 Idaho, 35, 71 Pac. 608, 60 L. R. A. 716, the defendant was convicted of the crime of rape. In speaking of the duty of
The attorney general cites 2 Encyclopedia of Pleading and Practice, 726. This language is used: “Prosecuting attorneys in ■a criminal ease may properly declare to a jury that the evidence convinces him beyond a reasonable doubt that the prisoner is ■ guilty.” There was certainly nothing objectionable to this statement.
In State v. Jefferson, 43 La. Ann. 995, 10 South. 199, the prosecuting attorney said: “If juries did not convict people who have been so clearly shown to be guilty as this defendant has been, you might as well tear down the courthouse.” This again was only his conclusion of what the evidence established.
In Scott v. State, 7 Lea, 233, the attorney general said to the jury: “If juries don’t punish crime, the people will rise up, and should rise up and punish it.” This was held reprehensible, but not reversible, error. No promises here that if the people will take the law into their own hands they shall have immunity from the prosecuting officer of the county or state. .
We have examined all the other authorities cited by the attorney general and find that they do not apply to the ease under consideration.
The third error complained of relates to the failure of the court to instruct the jury on its own motion that “the defendant was presumed to be innocent until he was proven guilty.”
Assignment No. 4 is based upon the severity of the sentence imposed upon the defendant to fourteen years’ imprisonment, counsel for the appellant insisting that the evidence in the case does not warrant severe punishment. We express no opinion on this assignment.
Assignment No. 11 relates to a question asked William Harness, the husband of Eosa Harness, to wit: “Did you see any marks or bruises on her body?” This question was objected to by the county attorney and the objection sustained by the court. This was error, as other witnesses had testified to seeing marks and bruises on her person, and counsel for appellant had the right to interrogate the husband while upon the stand relative to such marks and bruises. . .
We find no error in the ruling of the court set out in assignment No. 2. The question was propounded to Eosa Harness, to wit: “You didn’t discover you had been raped until the next day, did you?” It would seem that this question was more for the purpose of humiliating the witness than to elicit the facts in the case, and an objection to it was properly sustained.
Assignment No. 4 is based on the cross-examination of Eosa Harness relative to certain changes that had been made in her evidence before the committing magistrate. It was shown that the changes were not made in the presence of defendant. The question was: “This question you did not change, did you? You talked this all over with the county attorney ? Didn’t you answer, ‘Yes, sir’ ? You didn’t change that question, did you ?” The county attorney objected to this question, which was sustained by the court. This ruling was error.
Assignment No. 35 is based upon a question to witness, Anna Uhri, to wit: “And what else did she say? Anything else besides?” Counsel for appellant objected to this question, which was overruled by the court, and the witness answered detailing the conversation between herself and sister. This was error.
On this subject Mr. Underhill, in his very excellent work on Criminal Evidence, section 409, says: “The fact that the
A long list of cases are cited in support of this rule by Mr. Underhill in support of this text. People v. Wilmot, 139 Cal. 103, 72 Pac. 838, People v. Warren, 134 Cal. 202, 66 Pac. 212, hold to the same rule.
The judgment and order overruling defendant’s motion for a new trial must be reversed and new trial ordered.