28 Vt. 512 | Vt. | 1856
Lead Opinion
The opinion of the court was delivered by
In prosecutions for offences mentioned in this indictment, the prosecutrix is, from necessity, a competent witness for the state. The credibility of her testimony, however, and her general character for truth, as well as for chastity, are matters involved in the trial of the case, and are exclusively to be determined by the jñry. 2 Arch. C. P. 307. On the counts in which the respondent is charged with the crime of rape, we think the inquiry proposed to the prosecutrix, on her cross-examination, whether she had not had sexual intercourse with other men, both before and after the time in which she had testified the offences were committed, was proper, and should have been allowed. The inquiry was particular in specifying the names of the persons with whom, and the places where such connections were had. In all cases of
The case of Rex v. Clarke, was an indictment for an assault, with intent to commit a rape. On the cross-examination of the prosecutrix, she was asked whether she had not been sent twice to the house of correction for having stolen money from her master several years previous. No question of privilege being interposed, she admitted that she had been, and was then permitted to remove the impeachment, by showing her subsequent good character. The prisoner then proposed to call witnesses to impeach her character for chastity, both generally and particularly. The court admitted the evidence as to her general character, but rejected the evidence of particular facts. There was no offer to inquire of the prosecutrix, on her cross-examination, in relation to those particular facts, nor was there any decision of the court that such an inquiry would be improper.- It would seem to be as proper as to inquire of her, whether she had not been confined in the house of correction for larceny.
But if we are to consider these cases as having decided the doctrine as contended for by the counsel for the state, and in that light, by some authors, they have been so considered, it is very clear that, to that extent, those cases are not now regarded as of binding authority in the English courts. The case of Rex. v. Barker, 3
The testimony of Sarah E. Johnson was also used on the count charging the respondent with the crime of incest. The birth
Dissenting Opinion
dissenting. I cannot concur in the opinion expressed by a majority of the court. It is to be conceded, that in prosecutions of this kind, the general character of the prosecutrix for chastity is involved, and put in issue, and the rule relative to the impeachment of her character, in this respect, is thus summed up in Green-leaf’s Ev. vol. 3, § 214. “ It must be done by general evidence of her reputation, in that respect, and not by evidence of particular instances of unchastity, nor cari she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself.” The rule is substantially the same in all the elementary writers upon evidence that I have been called upon to examine. A general want of chastity may furnish a basis for a presumption that the illicit connection was by consent, and thus it becomes material to the issue. But no such presumption should be allowed to arise from a particular instance of an illicit connection with another person. Presumptions cannot rest upon mere suggestion or surmise.- They must have some ground to stand upon, some facts upon which they can arise. I
In the case of the The State v. Jefferson, 6 Iredell 305, the •court of Norih Carolina, upon the authority of those cases, excluded, as irrelevant to the issue, particular acts of familiarity with other men, and this was the very point in judgment in that case. The only point decided in Camp v. The State of Georgia, 3 Kel. 419, was, that general evidence of want of chastity was admissible.
It is said in the case of The People v. Abbott, in Wendell, that
The very nature of things show, that previous acts of familiarity between the prosecutrix and the prisoner, stand upon that peculiar ground, and are competent, as tending to prove consent. In the case of Regina v. Cloys, 5 Cox’s Crown Cases 146, decided in 1851, the learned counsel for the prisoner conceded the law to be, that he could not go into particular acts. It can hardly be supposed that this concession would have been made, if Rex v. Hodgson and Rex v. Clark, had been given up in England. It has been said that the case of Rex v. Barker, 3 Carr. & Payne 589, shows that proof of particular facts may be given in evidence, and is opposed to Rex v. Hodgson and Rex v. Clark. But I think not. In the case in the 19th Wendell, the case of Rex v. Barker is treated as an authority to show that general evidence of bad character, as to chastity, may be received, and the case is viewed in the same light by Patterson, J., in Regina v. Cloys, 5 Cox’s Crown Cases. Though Parke, J., who tried the case of Rex v. Barker, at first thought that to permit the prosecutrix to be inquired of whether she was not, on a particular day, walking in High street of Oxford, to look out for men, with a woman reputed to be a common prostitute, would be to conflict with Rex v. Hodgson, and Rex v. Clark, and allow particular acts to be proved, but upon consultation, the inquiry was allowed to be put, and I think correctly. It was proving something more than particular acts. High street, no doubt, was understood to be a common resort for
In cases of seduction the defendant may prove on trial that the daughter has been previously criminal with other persons, and such is the case of Verry v. Watkins, 7 Carr. & Payne, 308; but it is only admissible on the question of damages.
The plaintiff cannot object to the proof of such facts by witnesses called by the defendant on the ground of surprise. She is bound to come prepared to meet them, they being pertinent on the question of damages. But in an indictment for a rape, such prior acts of criminal conduct are not competent under the issue. If they were, the government attorney could not claim to reject them on the ground of surprise. To preclude the defendant from proving such facts by witnesses by him called, on the ground of surprise to the other party, and yet permit him to prove the same facts upon a cross examination of the prosecutrix, looks to me like judicial trifling. If the defendant cannot prove a prior connection between the prosecutrix and a third person, by witnesses by him called, it must, I think, follow, from principle, that he could not prove the same facts by the prosecutrix herself.
It is equally immaterial to the issue in either ease; and it is, in my mind, of no importance from what source it is sought to make proof of the fact.
With this view, I have no occasion to examine the question of
The attorney for the government objected to the questions put to the witness; and the court refused to allow the question to be put.
It is assumed that the privilege of the witness being personal, it would be error in a court to exclude a question material to the issue, and which the witness was not bound to answer, unless the witness first claimed her privilege. But I hold it to be the duty of the court to protect a witness ; and when a question is put to one, though it may be material to the issue, which upon its face he is not bound to answer, the court may, upon its own mere motion, or upon motion of counsel, refuse to allow the question to be put to the witness. This has been the usual practice at nisi prius. See Rex v. Hodgson, R. & R. 211; Dodd v. Norris, 3 Camp. 519 ; Rex v. Lewis, 4 Espinasse 222; Cundell v. Pratt, 1 M. & Malk. 108. If the witness remains mute, it may well be considered he adopts the claim of privilege made in his behalf.
If the witness waives his privilege, he should be examined. If it was necessary to sustain the ruling of the county court, it might well be presumed the court proceeded upon the ground of the privilege of the witness; but considering the testimony, as I do, not relevent to the issue, it is of no importance further to consider the question of privilege, and whether it existed or not.
In regard to the count in the indictment, for incest, it strikes me that the fact, that the prosecutrix stated that she had been delivered of a child in consequence of the connection with the respondent, was of no possible importance. It seemed to have fallen out inadvertently. It was a fact not sought for by the prosecution, and not objected to by the defendant. The simple fact that the girl was delivered of a child, had no tendency to prove that such child was begotten by the defendant, and, much less, to prove that the sexual connection in which it was begotten was against her will. It is a fact in no way confirmatory or bearing upon the position that the daughter had an illicit connection with the father) which is the point to be established under the count for incest.
If, then, the fact of her pregnancy, and the birth of the child, were of no importance to the prosecution, and irrelevant and immaterial to the issue, the case called for no rebutting testimony in