105 N.W. 617 | N.D. | 1905
The defendant was tried and convicted of the crime of rape in the section degree, and sentenced to imprisonment at hard labor for a period of eleven years. He appealed from the judgment.
The facts, as claimed by the state, are that the prosecutrix, who is the defendant’s niece, was at the time of the rape only 15 years of age, and resided in the same house with defendant, and usually slept in a bed in the same room where defendant had his bed; that the defendant, on three occasions during the year before the rape was committed, got into bed with the prosecutrix and attempted to have intercourse with her, but desisted without accomplishing his purpose; ' that about the time of her fifteenth birthday, which was on June 9, 1903, he against visited her bed and committed the crime with which he is charged; that a short time afterwards he got into bed with her again and took indecent liberties with her person, but did not have intercourse; that the prosecutrix ran away from defendant’s home that same night and informed her elder brother and others of the defendant’s acts. She testified that the reason she ran away was partly because the defendant whipped her that day and partly because of his indecent conduct towards
There are 151 errors assigned, but they may be grouped into five classes: First, those which complain of the leading questions ; second, .those which complain of the misconduct of the trial judge in the examination of witnesses and remarks prejudicial to the defendant and 'his evidence; third, those challenging the propriety of the court’s rulings in unduly limiting the cross-examination; fourth, those which complain of the court’s rulings in excluding evidence offered by the defendant; fifth, those based on exceptions to the giving and refusing to give certain-instructions to the jury. The record discloses that almost the entire direct examination -of the prosecutrix, and especially in' relation to the most material and -essential facts necessary to establish the crime charged, consisted of a series of leading questions. In fact, the witness was hardly required to do more than merely assent to the statements made .by the prosecuting attorney, as 'he related, question by question, all the facts and circumstances which went to prove the crime charged. It does not appear that any attempt was made to -have the witness state the facts in her o-wn language in response to proper questions before the leading questions wer-e resorted to. The first question asked in reference to defendant’s improper conduct was a “forked” question, which assumed a fact as to which there had as yet -been no proof and asked the witness to- state when, it occurred. The question was: “When did Lewis O. Hazlett first -come over to your bed ?” Thereupon the prosecuting attorney, often aided by the trial judge, continued the -examination of the prosecutrix with respect to the revolting details of the alleged crime by asking questions extremely leading in form. Throughout the entire direct and redirect examination there was 'hardly a single question asked which did not directly suggest the answer desired, or which gave the witness an opportunity to state any of the facts in her own language.
It is claimed, however, that she was so ignorant and diffident that it was extremely difficult to elicit from her any statement of the distressing facts. It does not appear, however, that any attempt was made to have her state the facts in her own way. We
We shall not discuss in detail the numerous errors in which appellant complains that he was greatly prejudiced, because the trial court was unduly active in the examination of witnesses, and especially by its frequent interruption of the cross-examination with suggestive questions and remarks. We think the appellant’s complaint in this respect is well founded. The trial court rook a very active part in both the 'direct and cross-examination of all the witnesses for the state and the defendant. In the cross-examination of the prosecutrix, especially, he very frequently interrupted defendant’s counsel by questions which necessarily suggested to the witness the proper answers to make to avoid possible inconsistencies and minimize improbabilities in her statements. His occasional remarks, also, in reply to obj ections by counsel or in ruling thereon, were often of such a character that the jury could hardly fail to infer that the judge was fully convinced of the truthfulness of the prosecutrix and the merits of the state’s case. Such was the necessary effect of the numerous suggestive questions, interruptions and remarks by the trial judge, although, in justice to him, we will say that we are convinced that no such result was intended. It does not appear that there was any real necessity for such active
The errors assigned relating to alleged improper restrictions upon the cross-examination of the state’s witnesses are too numerous to be discussed in detail. We think the errors in this respect will be sufficiently guarded against on the new trial by the observance of the general rules which ought to govern such examination. The cross-examination was unduly limited in scope. The state’s case depended wholly on the testimony of the prosecutrix, who was almost wholly uncorroborated, and her testimony had been elicited by extremely leading questions. While such an
A few examples will suffice to show how the cross-examination of the prosecutrix was unduly limited. The prosecutrix, in response ■to leading questions, asserted that the defendant and she regularly occupied different beds in the same room in the house, while the other members- of the family slept in the barn. The defendant attempted to show, by cross-examination of her, that the defendant always slept in the barn with the other men, except when visitors slept in the house, -and in that event he occupied the room with the visitors. The testimony bore directly upon the probability of any opportunity to commit the crime without detection. The court sustained objections to this line of cross-examination, remarking that it made no difference where he slept, because the question was whether he got into bed with the witness on the particular occasions in question. The -defendant also sought to -obtain from the prosecutrix .an admission that her brother and others had instigated the prosecution solely from ill will toward the defendant, and had “coached” the witness what to testify to, etc. It was evidently the .claim of the defense that the charge was a trumped up one, and that the prosecutrix had been induced to make the accusation falsely by the defendant’s enemies. This was not per
We think the court also improperly excluded evidence offered by the defendant which -ought to have been admitted. As already s-tated, it was a controverted question as to whether the •prosecutrix was over o-r under the age of consent when the intercourse occurred. The exact date of the act does not appear. The circumstances, however, so far as they were permitted to appear, indicate very strongly that, if the act occurred as claimed by the prosecutrix, it must have been in June, and probably after the 9th of that month. The state claims she was 15 on that date, while the defense claims she was 16. The point was decisive of the case, -because there was not sufficient evidence to show a rape accomplished by force or threats, and it is admitted that the prose
The court also erroneously excluded the testimony of Mrs. Underwood, by whom the defense sought to show that the prosecutrix had, in a conversation with the witness, stated in effect that her brother and others had urged her to prosecute the defendant but she told them it was useless because the defendant had not com
Inasmuch as there must be a new trial, at which the evidence may be different, it is unnecessary to discuss the assignments of error based on the instruction and refusals to instruct.
The judgment is reversed, and a new trial ordered.