State v. Newburn

BELT, C. J. Defendant was convicted of statutory rape on a girl thiiteen years of age and was sentenced to serve a term in the penitentiary. The crime is alleged to have occurred when defendant — a married man thirty-two years old — was taking the prosecutrix home in his automobile on the night of October 8,1944. Prosecutrix did not complain to her mother of the alleged sexual intercourse until about three weeks after it is claimed to have happened. The mother became concerned about the condition of her daughter and took her, on November 6, 1944, to Dr. Chas. A. Haines in Ashland, Oregon, for a physical examination. The doctor testified that the examination disclosed a ruptured hymen, but that he was unable to say when the sexual intercourse had occurred. Dr. Haines said that prior to the examination the girl denied having had sexual intercourse with any person, but that subsequent thereto she did not persist in such falsehood. Mrs. Virtris Bang, a witness for the defendant, was asked on direct examination whether the prosecutrix had ever had a conversation with her in which the prosecutrix stated that “she had sexual intercourse *240 five times with-in one evening.” The court properly sustained an objection to such question. It is pure hearsay. We agree with appellant that when the state thus undertakes to corroborate the statement of the prosecutrix that defendant had sexual intercourse with her, he has the right to rebut any unfavorable inference arising from such evidence by showing that the ruptured hymen may have been caused as a result of sexual intercourse with some other person. See numerous authorities in 140 A. L. R. 367 note, among which is State v. Haynes, 116 Or. 635, 242 P. 603. However, the record before us does not present such question. We are concerned here with the admissibility of an alleged oral declaration made by the prosecutrix to a third person when no proper foundation for impeachment had been laid. State v. Haynes, supra; 44 Am. Jur. 944, § 72; Underhill’s Crim. Ev. (4th ed.) § 425. As stated in 52 C. J. 1063, § 88: “Statements made by the prosecutrix, not part of the res gestae, are not admissible in behalf of defendant, except to impeach the testimony of the prosecutrix, upon the proper foundation being laid.” The court recognized the exception to the general rule by permitting cross-examination of the prosecutrix as to other acts of sexual intercourse. We see no merit in the contention that the court erred in permitting the state to show the circuitous route taken by defendant in his automobile when accompanied by prosecutrix and her girl friend. The serious error assigned pertains to the argument before the jury by the District Attorney wherein, among other things, he said: “Mrs. Newburn was familiar with all the circumstances concerning defendant’s entrance into the *241 army. There is no merit in counsel’s argument that the condition of the defendant’s back would have prevented him from committing the offense in the cramped quarters of a one seated Ford coupe as testified by the prosecutrix. Ordinarily the army wouldn’t have taken him if he were not physically fit and he must have been discharged for some other reason. I don’t know what it might be. “The state is limited in its prosecution in these cases. The state can only present legal testimony. That is the only testimony that is admissible under our laws and rules of this court, and out of all of the facts in the District Attorney’s office that we may have, we can only present such evidence as is admissible.” Defendant objected to such argument “as intimating to the jury that the District Attorney had other evidence, though inadmissible, which tended to show the defendant’s guilt and implied by such remarks an inference of defendant’s guilt upon evidence which was inadmissible, and which remarks were improper and prejudicial to the defendant. ’ ’ We think this argument is improper and was prejudicial to the rights of defendant who was accused of a crime most difficult to defend against. The court in over-ruling the objection to such argument accentuated the error. It is argued in the brief of the state that such argument was invited and merely retaliatory, but the bill of exceptions affords no basis for this contention. The District Attorney — being somewhat over-zealous in this particular instance — said in effect: “If the state could only introduce what evidence it has on this defendant, the jury would have no trouble in arriving at a verdict of guilty.” The law condemns injecting into arguments to juries extrinsic and prejudicial mat *242 ter which, has no basis in the evidence. If the court had sustained the objection of counsel for the defendant to this argument and instructed the jury to disregard the same, a different question would be presented. The judgment is reversed and the cause remanded for a new trial.