State v. Jones , 62 Idaho 552 ( 1941 )

Conceding the trial court should allow a liberal cross-examination of the prosecutrix in this class of cases as to any relevant, pertinent and connected circumstances which might modify, explain, contradict, rebut or make clear the examination in chief, such cross examination is not to be unlimited in scope. (People v. Burnette, (Cal.) 102 P. 799.)

Appellant does not by his argument or analysis show how any testimony which might have been given in response to the questions on cross examination to which objections were sustained would have enlightened the jury on any material point vitally germane to anything brought out on direct examination, (State v. Smailes, 51 Idaho 321, 5 P.2d 540) would have materially established any defense, (People v. Gidney, (Cal.)73 P.2d 1186) or disclosed any circumstances with regard to the prosecutrix pertinent to the defense not otherwise sufficiently proven.

It was clearly shown the prosecutrix made no complaint until arrested by the officers for the taking of appellant's watch and automobile. Failure to complain is no defense in statutory rape. (Levy v. Territory, (Ariz.) 115 P. 415; People v.Martinez, (Cal.) 210 P. 61; People v. Jacobs, 117 P. 615.)

The delay in making complaint and any effect thereof on the prosecutrix's credibility or animus was before the jury. Her parents testified for the defense fully as to conversations with her respecting appellant's conduct toward her.

Where she spent the night before was not touched upon in her examination in chief, and her whereabouts then is not shown to be of any probative value as to the claimed offense on the next day, or any defense thereto. (State v. Morrow, (Ore.)75 P.2d 737.) Defendant in effect acquiesced in many of the adverse rulings. Not having demonstrated their prejudicial nature he has not shown such abuse of the discretion lodged in the trial judge in ruling on the admission of evidence as to require a reversal. (State v. Thomas, 47 Idaho 760,278 P. 773.)

While appellant contends his statement to Mrs. Winters about the officers trying to bring a rape charge against him was made in reference to accusations of the officer Craig at a meeting in a shop in Rupert Tuesday the 14th, Craig denied having made any charge of misconduct until after prosecutrix was arrested three days later, and Mrs. Winters testified positively her conversation with appellant was Monday evening the 13th. If he made this statement before the prosecutrix had made complaint to the officers or they to him, as the record discloses, it was absolute corroboration by the appellant himself of the girl's story, as no one else at that time, as shown by the record, knew anything about the claimed offense. The appellant and prosecutrix were undeniably together in the hotel at the time she said they were, and it was for the jury to decide the conflict between her assertions, which were not inconsistent, incredible, unreasonable or improbable (State v. Alvord, 47 Idaho 162, 272 P. 1010) of his insertions, and his denials. There was no material inconsistency in her recitals of the events of the offense and thus there was sufficient corroboration. (People v. Ah Lung, (Cal.) 83 P. 296; People v. Gallagher, (Cal.) 291 P. 626;State v. Thomas, supra; State v. McPherson, (Ore.)138 P. 1076; Valencia v. Milliken, (Cal.) 160 P. 1086; People v.Norrington, (Cal.) 202 P. 932; People v. Valencia, (Cal.)259 P. 361; People v. Priddles, (Ore.) 125 P. 904; State v.Little, (Wash.) 270 P. 103; State v. Collins, (Mont.)294 P. 957.) The corroboration need be only of testimony not acts. (State v. Smailes, supra.)

That the first coition took place along side a public road was not so improbable as to discredit prosecutrix as a matter of law but was for the jury. (State v. Penrose, (Kan.)84 P.2d 846.)

The jury clearly gave the defendant the benefit of all doubt by rendering a verdict of only assault with intent to commit rape, and the judgment should be affirmed.

Budge, C.J., concurs in this dissent.