Summary
In State v. Haskins, 49 Idaho 384, 386, 289 P. 609, 609 (1930), this Court held that "the testimony of the mother in calling for her children and finding this one alone away with the defendant, and her relation of what followed, corroborates the child's testimony sufficiently under the rule announced by this court."
Summary of this case from State v. TisdelOpinion
No. 5505.
May 22, 1930.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Defendant appeals from a judgment of conviction of rape. Affirmed.
C.M. Jeffery, for Appellant.
A judgment of conviction of rape based upon the testimony of the prosecutrix alone cannot be sustained in any event unless circumstances surrounding the commission of the offense are clearly corroborative of her statements. ( State v. Short, 39 Idaho 446, 228 P. 274; State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Hines, 43 Idaho 713, 254 P. 217; State v. Larsen, 44 Idaho 270, 256 P. 107; State v. Smith, 46 Idaho 8, 265 Pac. 666.)
Corroborative evidence, whether consisting of facts or admissions, must be of such character as tends to prove the guilt of the accused by connecting him with the commission of the crime. ( State v. Alva, 18 N.M. 143, 134 Pac. 209.)
A conviction will not be permitted to stand where corroboration merely shows opportunity to commit the crime. ( State v. Short, supra; State v. Bowker, supra.)
W.D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.
The sufficiency of the corroborating evidence is for the jury. Whether there is any corroborative evidence tending to connect the defendant with the commission of the crime is a question for the court. (22 R. C. L. 1225; State v. Vail, 47 Idaho 354, 275 P. 578; State v. Hines, 43 Idaho 713, 254 P. 217; State v. Mason, 41 Idaho 506, 239 P. 733; People v. Fraysier, 36 Cal.App. 579, 172 P. 1126.)
The defendant is charged with statutory rape upon a child eight years of age. At the trial he was found guilty by the jury. Upon this appeal in his specifications of error appellant asks reversal on the grounds of insufficiency of the evidence on the claim that the story of the child is improbable and incredible. Also it is claimed that as a matter of law the child's testimony is insufficiently corroborated in fixing the perpetration of the crime upon the defendant, error in refusing an advisory instruction of acquittal, and in giving the seventh instruction.
Always a recital of the facts in these cases seems an improbable, incredible story. This is so because it is difficult for the ordinary man to comprehend the ways of the sexual pervert. However, the law must not ignore the fact that these crimes are committed. They are committed stealthily. Direct corroborating proof of the specific act is often quite impossible.
That the crime in this case was committed is established quite sufficiently by the testimony of the doctor who examined the child the day following its commission. All that remained after his corroborating testimony was to unquestionably fix that guilt upon the proper person.
Owing to the enormity of the charge made and the seriousness of the penalty inflicted we have with great care examined the record and considered every detail of the evidence. A recital of the testimony would serve no useful purpose. Suffice it to say we find the testimony of the child, for one of her age, to be simple, straightforward and clear. Upon a careful cross-examination, it is consistent with all the facts and circumstances developed. There is not a word or a circumstance in the record challenging its verity or inconsistent with any part of it.
As to corroboration in connection with fixing guilt upon the defendant, we think the testimony of the mother in calling for her children and finding this one alone away with the defendant, and her relation of what followed, corroborates the child's testimony sufficiently under the rule announced by this court. ( State v. Vail, 47 Idaho 354, 275 P. 578; State v. Smith, 46 Idaho 8, 265 P. 666.)
In testing the propriety of an instruction it cannot be considered alone. When considered in connection with the instruction preceding it and the one following it, the seventh instruction correctly states the law, and was properly given in this case. All of the instructions must be read and considered together. ( State v. Jurko, 42 Idaho 319, 245 P. 685.)
The court's instructions seem to have been carefully framed. They quite completely advised the jury of every safeguard the law affords one charged with crime, and we find the evidence of the prosecuting witness sufficiently corroborated to sustain the verdict returned. An advisory instruction of acquittal would have been improper. The judgment is affirmed
Givens, C.J., and Budge, Lee and Varian, JJ., concur.