State v. Anthony

SULLIVAN, C. J.

— The defendant was convicted of the crime of rape, alleged to have been committed upon a girl ten years of age, and sentenced to a term of twenty-five years’ imprisonment. This appeal is from the judgment and the order overruling a motion for a new trial. The errors assigned go to the insufficiency of the evidence to sustain the verdict, and in compelling the defendant to testify in regard to an alleged criminal assault on a young girl by name of Marshall, alleged to have occurred in 1895, and in allowing witness Alfred Marshall to testify in regard to said alleged criminal assault.

As to the insufficiency of the evidence to sustain the verdict: We have made a careful examination of the evidence, and no good can result from an analysis of it here. Had the jury found the defendant guilty upon the legal evidence found in the transcript, this court would not be inclined to disturb the verdict; but as improper evidence was introduced, over the objection of the defendant, we are unable to determine what the verdict of the jury would have been if the improper evidence had not been introduced. Whether the legal evidence introduced on the trial was sufficient to establish the guilt of the defendant beyond a reasonable doubt is a question, in the first instance at least, for the jury, as there is a material conflict therein.

At the conclusion of the evidence for the defense, and after the defense had rested, the defendant, over his objection, was recalled by the prosecution for further cross-examination, and ■this is urged as error. Section 6081 of the Eevised Statutes, provides, inter alia, that, after the examinations on both sides are concluded, the witness cannot be recalled without leave of court, and leave is granted or withheld in the sound discretion of the court. Upon a proper showing, the court, exercising a sound discretion, may permit the recall of a witness for further *388 examination. In this case the witness was recalled for further cross-examination, after defendant had rested. And section 6079 of the Revised Statutes, as amended by Laws of 1889 (15th Sess.) page 1, provides that “the opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and, in so doing, may put leading questions. The cross-examination is confined to the facts stated by the witness in his direct examination, or connected therewith. The pretended cross-examination did not relate to any facts stated by the witness in his direct examination, or connected therewith. The testimony of the defendant in his direct examination was confined to the crime for which he was being tried, and the pretended cross-examination related wholly to an alleged occurrence between the defendant and the Marshall girl, in the year 1895, and not connected with the crime for which defendant was being tried in the remotest degree.

But it is contended by counsel for the state that said cross-examination was not “for the purpose of increasing the likelihood of defendant having committed the offense with which he was charged,” but was for the purpose of testing defendant’s credibility, and for impeachment. The credibility of a witness may be impeached by proof that he has made statements out of court contrary to what he testified to at the trial; but that is confined to such matters as are relevant to the issues. (1 Green-leaf on Evidence, 13th ed., sec. 463.) Section 6083 of the Revised Statutes, provides how a witness may be impeached (1) by contradictory evidence, or (3) by evidence that his general reputation for truth, honesty, or integrity is bad. That section also provides that a witness cannot be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that the witness had been convicted of a felony. In this case the district attorney undertook by cross-examination to show that the defendant attempted to debauch a child, about one year prior to his conviction in this action. The defendant denied the charge, and the district attorney then put on the witness, Alfred Marshall, who testified that he caught the defendant in a compromising position with the child above referred *389 to. In other words, an attempt was made to discredit and impeach the defendant by contradicting him in regard to a particular wrongful act, that had not the remotest connection with the crime of which the defendant stood charged and was convicted. An attempt was made to discredit the defendant on a matter entirely irrelevant to the issue then being tried. That was not permissible. It is said in section 463 of 1 Greenleaf on Evidence, thirteenth edition: “But it is only in such nature as are relevant to the issue that the witness can be contradicted.'” Evidence of a particular wrongful act cannot be introduced to impeach a witness, “except that it may be shown by the examination of the witness or the record of the judgment that he had been convicted of a felony.” (See Rev. Stats., sec. 6082, supra.) It is not claimed that the defendant had been convicted of the alleged wrongful act of defendant with the Marshall girl. In fact, the record shows that he had not been. That provision of said section of the Revised Statutes prohibits the impeachment of a witness by evidence of a wrongful act, unless such act was a felony, and the witness had been convicted thereof.

Counsel for the state cite authorities which are claimed to sustain their contention on the point under consideration. We shall not attempt to review them here; for, if they sustain respondent’s contention, they must be under statutes different from our section 6082 of the Revised Statutes. State v. Mc Guire, 87 Mo. 642 , is cited. It holds that, if a defendant goes on the stand as a witness, he may be impeached by the record of former conviction of grand larceny, and supports the conclusion reached in this opinion. Nothing could have been more prejudicial to the defendant than the testimony under consideration. The court having admitted it as competent evidence, its prejudicial effect on the minds of the jurors could not have been removed by an instruction of the court attempting to confine its effect to discrediting the testimony of the defendant. After a most careful examination of the evidence, we are not prepared to say that the defendant would have been convicted had not the court erred in admitting the evidence in regard to the Marshall girl.

It is urged by counsel for the state that it would be difficult to find a case more revolting than this, and well-nigh impossible *390 to find a subject who belonged to a lower stratum of humanity than the defendant, and that society ought to be protected from defendant, and from the demoralizing and corrupting effects of a retrial of this case. The defendant is presumed to be innocent until he is proven guilty according to the established rules of law. And, if one is convicted in violation of these rules, his conviction is illegal, and on proper application will be set aside. The law is sufficient to protect society. If it is not, the remedy is in the bands of the law-making power. Under our criminal laws, no judgment of conviction can be set aside because of any technical errors or defects which do not affect the substantial rights of the defendant. But, when errors are made that do affect the substantial rights of a defendant (as was done in this case), the judgment must be set aside, and a new trial granted. It was prejudicial error to compel the defendant to testify in regard to the alleged occurrence with the Marshall child, and prejudicial error to admit any evidence whatever in regard thereto.

The court struck from an instruction asked by the defendant the sentence, “And no mater how slight that doubt may be, as long as it is reasonable, and based fairly upon the evidence, you should acquit,” which is assigned as error. The court was asked by that instruction to define or gauge the degree to which a jury must be convinced in order to justify a verdict of guilty. We know of no formula to which a court may resort for that purpose, and we think all attempts to establish such have resulted in failure. (Wells on Law and Fact, sec. 579.) There was no error in striking from the instruction the above-quoted sentence.

As the case must be sent back for further proceedings, we will call attention to the fact that, as the person upon whom the alleged rape was committed is shown to have been ten years of age, she was incapable of consenting to the act; so any evidence of the character or reputation or acts of the girl showing want of chastity is wholly irrelevant and immaterial, and should not have been admitted. The judgment is reversed, and the cause remanded for further proceedings in accordance with the views expressed herein.

Huston and Quarles, JJ., concur.