24 Mich. 1 | Mich. | 1871
The defendant and George H. Williamson were jointly informed against as principals iu a rape upon one Lovisa Towers. This defendant was tried separately and convicted, and he now brings the record to this court, assigning fifty-three errors. A number of these were not insisted upon on the argument, but those which were are so numerous that it will be convenient to consider them in connection with a statement of the proceedings as they took place on the trial.
Lovisa Towers, the prosecutrix, being placed on the stand, testified that she knew the defendant and had resided in his family. She was then asked what relation the defendant was to her, if any. This question was objected to, but allowed, and she replied that he was an uncle by marriage.
The reason assigned for the objection to this question is, that the relationship is an immaterial fact, but that the tendency of the proof of it must be to excite a prejudice against a defendant whom the nature of the charge always places sufficiently at a disadvantage, and whom it should be
The witness proceeded to state that Williamson came to her mother’s house on the evening of the fifth day of June, 1870, and asked her to go with him to meeting. She consented, and they started in a buggy. About half a mile north of the house, they met the defendant, who stopped the horse and told Williamson to get out. Witness jumped out of the buggy, and defendant caught her and told her to get in again. She said she did not want to, but wanted to go home. He said she had got to go with him. The defendant took hold of her arm and went to push her into the buggy, and then she got in. Defendant made Williamson get out, and told witness he had got her where he wanted her, and she should go with him. Williamson said he would go home, and started to do so, as witness supposed, and defendant drove up to the woods and stopped, and told her to get out. She said, “ What are you going to do with me?” and he said she would soon find out when she got out of there. He took her out, took his coat off and laid it on the ground, took hold of her and laid her down on it. He told her to take off her drawers, and not daring to do different, she took them partly off. Defendant told her before she got into the woods that if she did not go with him and do as he wanted her to, he would take her where
The witness was further asked why she allowed Strang to have intercourse with her. The question was objected to, but allowed, and she replied that she did not dare do any other way, because he said he would take her where she would not get back home again. She was afraid he would take her off and kill her. The question and answer were entirely proper, as showing the state of mind of the witness, and explaining why she made no physical resistance.
The witness further testified that she told her mother what defendant had done to her, when she got home. On her cross-examination she said she worked for defendant two years previous to the trial. She had not seen him to speak to him from December 9, 1869, to the' time of this occurrence; did not remember testifying on the examination of defendant, before the justice, that she had connection with defendant because he threatened her, not then, but at another time; did not remember testifying that he did not say he would take her where no one would know her fate, on the fifth of June; but he did say so on the ninth of December; did not remember that she told defendant if he would take her right home he might have connection with her. She asked defendant to take her home, and he
Sophronia Towers, the mother of the prosecutrix, testified to her coming on the evening of the fifth of June, and that she looked as though she was badly abused, and entirely exhausted and frightened. She complained of the abuse; said defendant had abused her, and told what he had done. Witness sat up with her all night. She looked feeble and did not sleep. All this evidence was objected to by defendant, but we think it admissible both on reason and on authority. The fact of immediate complaint is always of importance in these cases, and the appearance of the woman, and whether she bears upon her person marks of violence or other indications of an outrage of the nature complained of, may also be shown. — McCombs v. State, 8 Ohio, N. S., 643 ; State v. Knapp, 45 N. H., 149 ; 1 Phil. Ev. by Cowen, Hill & Edwards, 148. The particulars of the complaint were not called for in this ease, so that no question arises concerning the propriety of permitting the mother to state them.
The prosecutrix was then recalled and recapitulated some of the facts of the case, and was also allowed, under objection, to state that she was afraid of defendant because it run in the family to kill folks, and because she had seen him abuse his wife so. We think any evidence which would show reason in the witness for fearing danger to life or
The witness was then asked to state fully the particulars of what occurred on the 9th of December. This was objected to, but allowed, and she stated the facts of a rape which she said was committed upon her on that day by the defendant, and added, that she immediately communicated the particulars to two women, whom she named, but' by their advice refrained from mentioning it further. This rape was accomplished by threats of personal violence. We think the evidence admissible as explaining, to some extent, the fear the witness was under, and as tending to account for her submission to his will when he took her to the woods on this occasion. In submitting it to the jury, the judge instructed them that they were to regard it for that purpose only.
For the defense, Whitehead, with whom the prosecutrix had denied having had sexual intercourse, was called, and testified that he did have such intercourse in the fall of 1869, being then engaged to marry her. He was then asked whether he did not on a certain occasion lie on the bed with her and take improper liberties with her person. On objection by the prosecution, the court overruled the question. The argument for its admission was, that an .affirmative answer would tend to render more probable his
To impeach this witness, the prosecution was permitted to inquire of him about his being at a hotel the evening before the trial, and asking to be trusted for liquor, and whether the defendant did not step up and say he would pay for the liquor, and tell the witness to go in to-morrow and do as he, the defendant, had told him. The witness said he did not know of these things having taken place. He was then asked whether he was not drunk at the time, and he replied he was not. The prosecution was after-wards allowed to call witnesses to show that the alleged occurrence at the hotel did take place, and that Whitehead was seen intoxicated the same evening, in the street and elsewhere.
So far as this evidence related to the occurrence at the hotel, it was admissible by way of impeachment. We are inclined to think, also, that the prosecution might properly be allowed to show Whitehead’s intoxication. He had not denied the alleged transaction between himself and the
The defendant’s wife was called as a witness on his behalf, and testified that she had witnessed sexual intercourse between the defendant and the prosecutrix, without objection by the latter, previous to the alleged offense. She also testified that when the prosecutrix lived with them, she slept habitually in the bed with herself and her husband. On cross-examination she was asked whether, when the present charge was made against her husband, she did not say if it was true she would not live with him another day. She replied that she had said she did not believe it, but did not threaten to leave him. This question and reply were objected to by the defense, but upon what ground is not very apparent. The answer could neither injure defendant, nor tend to add to the discredit the testimony in chief would be calculated to bring upon the witness.
When the case was again handed over to the prosecution, evidence was admitted to show that defendant’s wife had required the prosecutrix to sleep in the bed with hex-husband and herself, without any necessity therefor, and also that oxx one occasion she asked the girl to go alone into the bedroom where the defendant would soon come, and see what he would do. This last was received by way
The mother of the prosecutrix was again called to the stand, and allowed, under objection, to state that before Williamson and her daugher started out on the fifth of June, the latter spoke of her purchase of the dress at Litchfield, and of her indebtedness for it. This is complained of as being an attempt to give credit to the evidence of the prosécutrix by corroborating her on an immaterial point. It was put in, probably, because of the inquiry by the defense of the prosecutrix, whether this remark was not made by her while the three were in the buggy together after the alleged outrage. She denied that it was made at that time. Had there been any evidence contradicting her denial, this testimony of the mother might have had a tendency to support the girl’s statement, and to cast doubt upon the truth of that given to contradict her; but in the absence of such evidence, and while the girl stood uncontradicted, we do not see how this evidence of the mother could have been of the least importance. It was no more likely to affect the result than evidence of any idle remark that a third person might have made, as foreign as this, to the subject under investigation. It is the duty of the court to exclude with care any irrelevant testimony; but when that which was admitted can have had no possible influence in bringing the jury to believe the defendant’s guilt, or to prejudice them against him or his witnesses, and the court can clearly see that harm could not result, the judgment ought not to be
Several of the objections to evidence taken and insisted upon we have not considered in detail, because they seemed to us so clearly untenable that no discussion of them was needful. We refer particularly to those made to the admission of evidence of the circumstances immediately preceding and following the transaction in question, and which tended to characterize it; such as what was said by Williamson when he called for the prosecutrix to go out with him, and what was done after the connection with defendant before the prosecutrix was taken home. This evidence was not only admissible, but it was the plain duty of the prosecution to put it in. Upon this point we refer to what is said in Brown v. People, 17 Mich., 433, which is as applicable to cases of rape as of homicide. To separate the corpus delicti from all its antecedents and consequents, and present by the evidence to the jury only what occurred at the precise time and place of the consummation of the outrage, would be in the highest degree illogical, when the opposing will on the one side, and the felonious intent on the other are in question; upon neither of which, in some cases, would light be thrown except by the aid of what had taken place between the parties before, or by what followed. One thoroughly subdued by fear might seem to be consenting, when evidence of what had caused the fear might make the felony plain. Nor is it any objection in this case that a part of the antecedent facts took .place
The evidence being all in, the circuit judge was requested to charge the jury that they must be satisfied that the connection was had by force, against the will of the prosecutrix, and that there was the utmost reluctance and resistance on her part, and that if they entertained a reasonable doubt of such reluctance and resistance, it was their duty to acquit the defendant. This request was modified by the circuit judge and given to the jury in the following form: “The jury must be satisfied that the connection was had by force and against the will of the prosecutrix, and that there was the utmost reluctance and resistance on her part, or that her will was overcome ly fear of the defendant; and if they entertained a reasonable doubt of such reluctance and resistance, it is their duty to acquit the defendant of rape.”
The court would have been in error if the instruction asked for had been given. The theory of the prosecution was that the prosecutrix was forced to submit to the defendant’s embraces by the terror of his threats, which was so extreme as to preclude resistance. The instruction requested would have put the case to the jury precisely as if no such threats had been made; and if accepted and acted upon by them, would have compelled an acquittal, even though the evidence for the people was fully believed. Had no putting in fear been sworn to, such a charge might have been unexceptionable; but under the evidence in this case it would have been wrong and misleading.
The following instructions were also requested by the defense:
“ If the jury find from the evidence that Strang did not
“If the jury believe from the evidence that the prosecutrix at first objected to having connection with defendant Strang, and had determined to resist him with all her force, but voluntarily yielded by reason of promises or inducements held out to her by defendant, then they must acquit him •of rape.”
The objection to these instructions was, that there was no evidence justifying them. The prosecutrix, by her testimony, negatived any yielding to promises or solicitations, ■and no evidence from others of promises or solicitations was put in. And the threats sworn to would not bear the mild construction thus sought to be put upon them, but plainly implied something more fearful. Indeed, the very vagueness of such threats is understood, in the mouths of violent inen, as implying the worst that is possible, and would be quite as likely to put in fear as any particular specification of the injury designed. The charge actually given by the judge appears to have been fair and just, and as no part of it was specially excepted to, we must suppose the defense was satisfied with it.
An objection upon which much reliance was placed was that the indictment was bad in charging two persons jointly as principals in the* ravishment; the nature of the offense being such that it was impossible" two should join in committing it. And although our statute provides: “The ■distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned
We are not under the necessity of considering this argument, because we have no doubt the information in this case is good without the aid of this statute. All persons aiding and assisting.in the commission of a rape are principals in the second degree. As such, a husband may be indicted for the aiding and assisting in the ravishment of his wife; as in case of Lord Audíey and Castlehaven, of which an ¿ccount is given in the third volume of the State trials. And a woman or a boy under the age of fourteen may be so indicted. — 1 East P. C., c. 10, § 8 ; 1 Hale P. C., 628. But it was never necessary to discriminate between principals in the first and those in the second degree in the indictment, provided the punishment was the same, and the guilty act was one which admitted of participation. — 1 Wat. Arch., 67 ; 1 Russ. on Cr., 30 ; 1 Bish. Cr. L., § 456. And in rape all .present and participating in the offense were regarded as ravishers. Thus, it is said in Russell, that “ the indictment against aiders and - abettors may lay the fact to have been done by all, or may charge it as having been done by one and abetted by the rest. Thus, where upon an appeal against several persons for ravishing the
There are no authorities qualifying or casting doubt upon these; and the pleading must be held sufficient. And as we find no other error well assigned, the conviction must be affirmed.