Defendant, a married man fifty years of age, was convicted of the crime of rape on his daughter, Barbara Jean Pace, who at the time of the alleged offense was fourteen years of age and a sophomore in the high school at Sweet Home, Oregon. He was sentenced to serve a term of twenty years in the penitentiary.
1. The contention of the defendant that there is no evidence to support the judgment of conviction and that he was entitled to a directed verdict of acquittal requires a brief statement of the facts. The indictment charges that the crime occurred on August 20, 1948. The State in the early part of its case in chief elected
The Court properly overruled this objection as at such time there was no evidence tending to show the commission of the crime at any place other than that designated by the State in its election.
Defendant and his wife, together with three minor children, lived in a four-room house at Sweet Home, Oregon. The house had two bedrooms, a kitchen, and a living room. Defendant slept on a davenport in the living room; his wife and youngest daughter, Velda Modena, aged six years, slept together in one bedroom; and Barbara Jean, the prosecutrix, and her sister, Shirley, aged twelve years, slept in the adjoining bedroom.
In our opinion there is some substantial evidence tending to show that defendant committed the crime charged at the time and place upon which the State relies. Barbara was a very reluctant witness to testify against her father. She was greatly embarrassed and confused. It was a terrible ordeal for any young girl to experience. If the evidence introduced by the State is true, Barbara did not have much of a chance in life. She testified about having sexual intercourse with her father on numerous occasions since she was five years old. She said it happened so often "it became a habit." Barbara testified about her father dressed
2. On direct examination Barbara thus testified:
We agree that the testimony of the prosecutrix relative to the time the alleged crime was committed is in some particulars quite vague and indefinite, but we think this objection goes to the weight of such evidence and not to its admissibility.
Shirley testified without objection about her father coming into the bedroom at night and getting into bed next to Barbara and having sexual intercourse with her sister, but she was very indefinite and uncertain as to the time the sexual act occurred. On cross examination she admitted that she did not see the act committed but asserted that she heard the bedsprings "squeak."
Zella Pace, wife of the defendant, testified that "during the month of August, 1948," she heard the defendant go into the bedroom where Barbara and Shirley were sleeping and that she "could hear the bedsprings, and with my knowledge, I knew what was going on."
Time particularly becomes material where an alibi is claimed. State v. Francis, 126 Or. 253, 269 P. 878; State v. Coss, 53 Or. 462, 101 P. 193; People v. Waits, 18 Cal.App.2d 20, 62 P.2d 1054; State v. Campbell, 324 Mo. 249, 22 S.W.2d 645; Landon v. State, 83 Okla. Crim. Rep. 141, 166 P.2d 781, 174 P.2d 266; State v. Waid, 92 Utah. 297, 67 P.2d 647; State v. Coffelt, ___ Wash. ___, 204 P.2d 521; 53 Am. Jur., Trial, 498, § 645.
8-11. It is urged that the Court erred in failing to direct a verdict of acquittal for the additional reason that the prosecutrix was not mentally competent to testify. No question was raised as to the competency of such witness until it appeared at the conclusion of her cross examination that she was in the State Hospital for the insane for psychiatric treatment. This poor girl was, on September 15, 1948, committed to the Hillcrest school, a state institution to care for "wayward" girls. Such commitment followed her confession of having burned her home on September 11, 1948, which she said she was induced to do by her father. The house was insured for $3,000.00. The superintendent of such school, Mrs. Katharyn Loaiza, testified that at the time this girl entered Hillcrest she was in a "very serious emotional state," but had shown great improvement since being transferred to the State Hospital. In her opinion, the prosecutrix was not insane. There has been no adjudication that the prosecutrix is an insane person, and there is nothing in the record of this trial to indicate her insanity. The mental capacity of the prosecutrix was a question for the trial court to decide in the exercise of a sound legal discretion. 44 Am. Jur., Rape, 976, § 115. It is reasonable to assume that the defendant
12, 13. In prosecutions for statutory rape, evidence of other similar criminal acts with the same child is admissible to show the lustful disposition of the defendant and the probability of his having committed the particular act charged in the indictment. State v. Ewing, 174 Or. 487, 149 P.2d 765. It is, however, well established in this jurisdiction, and elsewhere, that it is error to admit evidence tending to prove that the defendant committed similar offenses upon a female other than the prosecutrix. State v. Linn, 179 Or. 499, 173 P.2d 305; State v. Poole, 161 Or. 481, 90 P.2d 472; State v. Putney, 110 Or. 634, 224 P. 279; State v. Jensen, 70 Or. 156, 140 P. 740. The reason for such rule was well stated by Justice Burnett speaking for the Court in the Jensen case:
In the instant case evidence was admitted that the defendant had sexual intercourse with two of his other minor daughters and that such bestial conduct continued over a course of years. This evidence was highly prejudicial and constituted reversible error. We are not unmindful that there are a few authorities to the contrary cited from other jurisdictions — Lee v. State, 246 Ala. 69, 18 So.2d 706; Taylor v. State, 55 Ariz. 13, 97 P.2d 543; State v Jenks, 126 Kan. 493, 268 P. 850; State v. King, 342 Mo. 975, 119 S.W.2d 277 — but such holding is decidedly in conflict with the rule in this state and is not in keeping with the overwhelming weight of authority. See note 167 A.L.R. 588.
14, 15. The wife of the defendant was permitted to testify over objection that the defendant after his sterilization operation in 1943 "got so bold with the girls and started chasing around with other women." This evidence was prejudicial and should have been stricken on motion of the defendant. There were also admitted in evidence various other matters having no relevancy to the crime charged, namely, that defendant had failed to pay alimony as decreed by the Court and was held in contempt; arrested for arson; and that he had struck his wife. We think it is proper to show in a general way the trouble that arose between the defendant and his wife on account of his alleged relationship with the prosecutrix, but the range of such evidence should be reasonably limited. In other words, the defendant was on trial for only one alleged criminal act.
17. We think the Court also erred in giving the following instruction requested by the State:
The above instruction might well have been misleading in causing the jury to consider other offenses committed against the daughters other than the prosecutrix. We think evidence of such other offenses was not admissible for any purpose.
18, 19. The Court did not err in refusing to give the requested instruction number six of the defendant relative
20. It was improper for the district attorney in his argument to the jury to state what the wife of the defendant had told him in his office about the reason why she had not left the defendant after learning about his improper relations with the prosecutrix. We apprehend that such error will not occur on retrial.
21. It might well be argued that the counsel for the defendant, in taking their exceptions and requesting other instructions, waived some of the errors to which attention has been directed, but we think that when the record is considered in its entirety, the defendant has not had the kind of trial contemplated by law and that under such circumstances we may properly take cognizance of such palpable errors.
The judgment of conviction is reversed and the cause remanded for a new trial.