Opinion
Decided November 5, 1930.
Though on cross-examination a broad latitude is allowed as to irrelevant and immaterial matters, within the discretion of the court, bearing on the witness' credibility, the cross-examining party is bound by the answers thereto. On the trial of an indictment for rape the respondent having on cross-examination denied the commission of a similar crime previously committed with another person, the state may not prove the commission thereof for the purpose of discrediting the respondent or for any other purpose. On such trial the respondent's counsel knowing that the mother of the minor would deny having made an affidavit which set forth that her daughter had stated that the respondent never had had intercourse with her, called the mother as a witness who denied that she had made the statement contained in the affidavit. Counsel not being surprised by the testimony may not introduce the affidavit in evidence. On the trial of an indictment upon P. L., c. 392, s. 16 for rape upon a minor, her testimony that she did not understand the significance of her act is admissible because carnal knowledge, the essential fact required in proof of statutory rape, was more likely to have been had with one whose sense of the propriety of her conduct was dulled than with one possessing a full appreciation of its impropriety and criminal character. In such case, her testimony of a subsequent repetition of the defendant's act without objection on her part, and pursuant to an appointment made after the offense charged, is admissible as tending to show the commission thereof.
INDICTMENT, for statutory rape upon Hester Sewell, a minor child of the age of fifteen years, alleged to have been committed in June, 1929.
The defendant, on cross-examination, admitted that he had been indicted in 1928 for statutory rape upon one Simone Charland, but stated that the solicitor did not dare to try the case, and that he was being blackmailed by the Sewell and Charland girls. The state then inquired whether he had had sexual intercourse with the latter and he denied it. In rebuttal the state offered the testimony of the Charland girl that the defendant had had sexual intercourse with her in October, 1928. Against the objection that this evidence was incompetent and prejudicial, and subject to the defendant's exception, it was admitted as bearing on his credibility. Subject to like exception, a physician for the state was allowed to testify that upon examination of the girl he found the hymen ruptured. With respect to this phase of the case the jury were instructed: "Certain evidence relating to the conduct of this respondent with the Charland girl has been admitted. That evidence is not to be considered upon the question of the respondent's guilt in this case. It was admitted for what you may consider it worth as bearing upon his credibility as a witness. Evidence of other crimes is not to be taken as proving or tending to prove the truth of a particular charge, but when a respondent takes the stand it is competent to show and point out inconsistencies in his testimony upon the theory that if a witness is untruthful or mistaken in one respect he may be untruthful or mistaken in other particulars. You may consider the story of the Charland girl, where it is in conflict with his story upon the stand for what you think it is worth as tending to make the respondent's testimony less reliable than it otherwise should be, and for no other purpose."
The mother of Hester, being called as a witness by the defence, in answer to the defendant's inquiry denied that she had ever stated that her daughter had told her that the defendant never had intercourse with her. The defendant thereupon offered an affidavit of the witness which set forth that her daughter had told her so. The affidavit was excluded and the defendant excepted. Counsel were not surprised as they had talked with the witness and knew she would deny making the statement.
Hester was allowed to testify subject to the defendant's exception that she did not understand the significance of her acts with the defendant.
Subject to like exception, Hester was permitted to testify that, by appointment made following the intercourse on June 6th, she met and accompanied him on June 8th to a place in the woods where, without objection, she submitted to a repetition of the act.
Upon a verdict of guilty the defendant moved to set it aside as against the evidence and the weight of the evidence, against the law, and the law and evidence, and because the state's physician had found no evidence that the crime had been committed. This motion was denied subject to the defendant's exception.
The defendant's bill of exceptions was allowed by Young, J. Other facts appear in the opinion.
Ralph W. Davis, attorney general, and Stewart E. Rowe, solicitor, for the state.
Arthur L. Churchill and Samuel W. Emery, for the defendant.
The defendant, by taking the witness stand, subjected himself to cross-examination under the rules applicable to other witnesses. State v. Fogg, 80 N.H. 533, 535; State v. Travis, 82 N.H. 220. While under the broad latitude allowed in such examinations questions as to irrelevant and immaterial matters bearing on the witness' credibility may be indulged within the sound discretion of the court, the questioner in such case is bound by the witness' answers. Combs v. Winchester, 39 N.H. 13, 17. There is no claim that the suggested crime upon the Charlton girl in June, 1928, if perpetrated, had any logical connection with that alleged to have been committed upon the Sewell child in October, 1929. Evidence of the former was incompetent in proof of the latter (State v. Lapage, 57 N.H. 245, 289, 295, 296), and was manifestly prejudicial. The defendant's denial of the earlier conduct afforded no basis for its proof by the state for the purpose of later discrediting him or for any other purpose. In the situation presented, it was "positively improper to be proved at all." Seavy v. Dearborn, 19 N.H. 351, 356; Collins v. Benson, 81 N.H. 10, 11. Nor was there any discretionary power in the court to admit such evidence against the defendant's objection. Cooper v. Hopkins, 70 N.H. 271, 274-278.
As no brief has been filed by the state, its position as to this exception is not disclosed. It may be pertinent to say, however, that the defendant's assertion that the admitted indictment for rape upon the Charlton girl was the product of blackmail and that the solicitor did not dare to try it did not put his good character in issue. Moreover, such issue if presented could not be met by the proof of a particular act. State v. Lapage, supra, 289, 296. We are unable to perceive any basis for the claim that the defendant's admission of the former indictment, accompanied by a denial of the charge therein, made the testimony of the Charlton girl competent upon any issue in the case. In view of its prejudicial character the verdict must be set aside.
This conclusion makes it unnecessary to consider the defendant's exception to the denial of his motion following the verdict, but as the case may be tried again the other exceptions to evidence have been considered.
The affidavit of Hester's mother was properly excluded. Knowing that she would deny her imputed statement of the daughter's denial of intercourse with the defendant, counsel were not entitled to make the inquiry for the mere purpose of contradicting her by other evidence. Much less were they entitled to proceed to the completion of such improper purpose by submitting the opposing affidavit. Seavy v. Dearborn, supra, 356. Having made the inquiry the defendant was bound by her answer.
Hester's testimony that she did not understand the significance of her act was clearly admissible. While the question of her consent is not here involved, her lack of moral sensibility was material not only upon the weight to be given to her evidence but as well upon the probability that sexual intercourse took place. Carnal knowledge, the essential fact required in proof of statutory rape (P. L., c. 392, s. 16), was more likely to have been had with one whose sense of the propriety of her conduct was dull than with one possessing a full appreciation of its impropriety and criminal character.
Hester's testimony of a repetition of the defendant's act without objection on her part two days later, pursuant to an appointment made following the act charged, was admissible as tending to show the relationship existing at the time of such first act. The appointment, together with the consummation of its purpose tend to show that at the time of such appointment modesty had already been cast aside and the natural barriers to sexual intimacy weakened. Proof of such a salacious relationship was material upon the probability of the commission of the act charged and in corroboration of the direct evidence of its occurrence. State v. Tetrault, 78 N.H. 14, 15; State v. Marvin, 35 N.H. 22, 28; State v. Knapp, 45 N.H. 148, 156; State v. Bridgman, 49 Vt. 202, 210, 211; Thayer v. Thayer, 101 Mass. 111, 113, 114; People v. Gray, 251 Ill. 431, 440; Penn v. State, 13 Okla. Crim. Rep. 367, 374; 48 L.R.A. (N.S.) note, 237; 22 R. C. L., Rape, s. 40; 1 Wig. Ev. s. 398 et seq.
Although this testimony comes within a class where discretion may be exercised, the evidence here was so forceful on the issue that it could not be excluded in discretion as remote. Daley v. Insurance Co., 81 N.H. 502, 506.
The order here is
New trial.
All concurred.