State v. Paddock , 86 Mont. 569 ( 1930 )

This case has caused the court much concern. The defendant may have raped his infant daughter, as she says he did. On the other hand, it may be that the girl, following a suggestion made by her mother (who is estranged from her husband, the girl's father), has falsely accused her father, perjured herself to accomplish his conviction.

Prosecutrix was asked if, being in Terry, she did not have a conversation with her father, in the presence of her grandmother, Dan Paddock and Ada Paddock, in which she said, "I want to go back to Minneapolis; it is too dead here in Terry"; and if her father did not respond, "No, you can't go back to Minneapolis, as long as your mother is leading the life she is leading, or until you are of age"; and if she did not reply, "I will, too; I will put you in jail; my mamma told me what to do to put you in jail." She denied the conversation utterly. On the contrary, her father, her grandmother, and Ada Paddock, her aunt, testified that the conversation occurred.

The jury were instructed, correctly, that they were the sole judges of the credibility of witnesses and of the weight to be given to their testimony. They saw and heard the girl, her father, and the other witnesses, upon the stand, and believed the girl. From her demeanor upon the stand, her manner of testifying — from what she said and how she said it — the jury must have believed she told the truth; and by the same standards they evidently disbelieved the defendant. The advantageous position of the jury and trial judge, as compared to that of the reviewing court, has frequently been remarked. As to the facts, the jury's verdict, approved by the trial court in denying the motion for a new trial, is conclusive upon us. (State v. Brodock, 53 Mont. 463,164 P. 658; State v. Chavez, 85 Mont. 544,281 P. 352; State v. Harkins, 85 Mont. 585, 281 P. 551.) And this is true, although the verdict rests upon the unsupported testimony of the prosecutrix. In State v. Peres, 27 Mont. 358,71 P. 162, this court pointed out that it has been generally held by courts of last resort in this country, in the absence of any statute, that such a conviction will not be disturbed for lack of evidence corroborating the prosecuting witness; while section 3120 of the Code of Civil Procedure of 1895 provided that the direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact, except perjury and treason. Section 10505, Revised Codes 1921, is a re-enactment of section 3120, supra.

This court has repeatedly commented upon the ease with which the charge is made and the difficulty of disproving it, even by one who is guiltless. (State v. Gaimos, 53 Mont. 118,162 P. 596; State v. Moe, 68 Mont. 552, 219 P. 830; State v. Wilson, 76 Mont. 384, 247 P. 158.) With our law in its present state, the fate of one on trial for rape, with no evidence against him except that of the prosecuting witness, must rest with the jury and the sound discretion of the trial judge. No error appearing, this court must follow the law, regardless of its doubts upon the merits of the case.

With respect to the assignment of error predicated upon the court's refusal to permit cross-examination of the prosecutrix, I do not see any error. The question related only to a conversation alleged to have been had between her father and herself. If she had answered the question in the affirmative, it would not have proved that she stayed all night with John Broberg. If she had in fact slept with Broberg, it would not have tended to disprove her testimony respecting her father's conduct. The main question was: Did her father rape her? The unrelated question whether Broberg did has nothing to do with the case; nor can I see how an affirmative answer to the question would have illustrated Dr. Danskin's testimony in any way. The authorities fully sustain Mr. Justice Angstman's opinion.