Summary
In State v. Cook, 55 A. 1012, 4 Pennewill, 31, and in the unreported case of State v. Cunningham, cited therein, testimony of other acts of the defendant toward the prosecuting witness was excluded.
Summary of this case from State v. CloughOpinion
02-07-1902
STATE v. COOK.
Herbert H. Ward, Atty. Gen., and Robert H. Richards, Dep. Atty. Gen., for the State. L. Irving Handy, for defendant.
Robert Cook was indicted for lewd and lascivious conduct. Verdict of guilty.
Argued before PENNEWILL and BOYCE, JJ.
Herbert H. Ward, Atty. Gen., and Robert H. Richards, Dep. Atty. Gen., for the State.
L. Irving Handy, for defendant.
The indictment charged that the defendant on the night of the 23d of December, 1901, "unlawfully, lewdly, and lasciviously" played with one Gracie Ellen Sandy, a femalechild under the age of 16 years, at the latter's home, in the city of New Castle.
Mr. Handy, for defendant, moved to quash the indictment on the ground that it did not fully inform the defendant of the nature and character of the offense he was called upon to meet, but merely stated a conclusion of law.
PENNEWILL, J. The court hold that the language of the indictment is sufficient to apprise the defendant of the specific charge which he has to meet; and, after all, that is the test. It will be observed that the language used is not only that Robert Cook played with a female child, not only that he unlawfully played with her, but that he unlawfully, lewdly, and lasciviously played with Gracie Ellen Sandy, a female child, etc. We think, therefore, that it comes within the rule laid down in the case referred to, where the charge was for having sexual intercourse; and we think this has definitely and specifically informed the defendant of the charge which he is to meet, as the indictment did in that case. The motion, therefore, is denied.
After the prosecuting witness, Gracie Ellen Sandy, had testified that the defendant had committed the offense charged on the night of Monday, December 23, 1901, she was asked by the deputy attorney general to detail what the defendant did when he came into her room the next morning before he had dressed. This was objected to by counsel for defendant as irrelevant, being a separate and distinct offense, committed on a different date from that laid in the indictment. Objection overruled and question allowed.
The witness was further asked by the deputy attorney general if there was anything the matter with her after the 23d of December, 1901. Objected to by counsel for defendant as irrelevant. Objection sustained. Q. After this morning, when you say that Mr. Cook came to your room and played with you, did he ever come back to you anywhere and do any such tiling? (Objected to by counsel for defendant as irrelevant; citing the unreported case of State v. Cunningham, being an indictment for using a female child for the purpose of sexual intercourse, where a similar question had been ruled out by the court.)
Mr. Richards, Deputy Attorney General: We offer this evidence for the purpose of proving, within a very limited period of time, other acts of a lascivious and lewd nature, as going to show the intent of the defendant at the time the offense charged in the indictment was committed.
PENNEWILL, J. We think, under the ruling in the case of State v. Cunningham, that this question is inadmissible.
PENNEWILL, J. (charging jury). The respective counsel have not asked the court to Instruct you upon any question of law, for the reason, we presume, that there are no questions of law involved in this case. The question to be determined is simply one of fact, and it is for your determination alone. Robert Cook, the defendant, is charged in this indictment with unlawfully and lewdly and lasciviously playing with Gracie Ellen Sandy; she, the said Gracie Ellen Sandy, being then and there a female child under the age of 16 years. The indictment is based upon a statute of this state which was passed February 21, 1881, being chapter 545, § 1, vol. 16, Laws Del. (Rev. Code 1852, p. 950, amended in 1893), which, as amended by chapter 126, p. 192, vol. 20, Laws Del., provides that, if any person shall lewdly and lasciviously play with any female child under the age of 16 years, he shall be deemed guilty of a misdemeanor. If you should believe from the testimony in this case, beyond a reasonable doubt, that Robert Cook, the defendant, committed the offense charged in this indictment, your verdict should be, "Guilty." If you should not believe this, your verdict should be, "Not guilty."
Verdict. "Guilty."