People v. Werner

Sharpe, J. Defendant was convicted of the crime of rape upon Elizabeth Nax, the 17-year-old illegitimate daughter of his former wife. The mother was also informed against as an accessory and likewise convicted. Elizabeth was bom in Germany. Her mother left that country when her daughter was five years old, leaving her in the care of friends and relatives. She met and married defendant in Arizona. They were subsequently divorced, but soon thereafter left that State under an arrangement that they should live together as husband and wife but hold themselves' out as brother and sister, she assuming the name of Anna Berger. They came to Femdale in Oakland county in 1920 and purchased a small property, the deed running to him as a single man and to her as a widow. After the war the mother wrote to Elizabeth and a correspondence followed, resulting in the sending of passage money and the daughter’s arrival in Femdale in February, 1921. It is her claim that defendant attempted to ravish her soon after she reached the home and that with the connivance and aid of her mother he did so on the night of February 14, 1921. She made no direct complaint until March 31st following, although she claims to have said to a neighbor woman soon after February 14th that she “wanted to be taken to a Christian home.” Mrs. Beaumon, to whom she sent a note asking that she [126] be “brought away by the police/’ was permitted to testify to the fact that complaint was made to her. While remote, in view of the fact that she was a stranger in a strange land, unable to speak our language, and that her mother, in whom she would naturally have confided, was, as claimed by her, an accomplice in the commission of the crime, we think it was within the discretion of the trial court to admit it. People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854); People v. Duncan, 104 Mich. 460. On April 13th, complainant was examined by Dr. Morris at the request of the prosecuting attorney. He found that her hymen had been ruptured and expressed his opinion that she had “probably, had intercourse,” while admitting that it might have been due to other causes. The defense then sought to show by cross-examination of the complainant, and also by offer of admissions made by her to her mother and defendant, that she had had sexual intercourse with men in Germany. The court, after listening to extended argument, ruled that the cross-examination would be permitted but that he would not permit her answers to be contradicted by such admissions. On this ruling counsel declined to cross-examine. We feel constrained to hold that the court was in error in so ruling. The proof admitted was in corroboration of her testimony. From it the jury might have found that the rupture was caused by an act of sexual intercourse. It was clearly permissible for the defense to meet this by evidence, either direct or in the nature of admissions made by her, that she had theretofore had such intercourse with another man. When the prosecutrix is above the age of consent, the rule is thus stated in 33 Cyc. pp. 1480, 1481: “Specific acts with others than defendant may be shown to rebut corroborating circumstances, as when the woman is pregnant or has miscarried or given [127] birth to a child, or where she was infected with venereal disease, or where a physician has testified that the hymen was ruptured.” See, also, People v. Craig, 116 Mich. 388; State v. Appley, 48 L. R. A. (N. S.) 269 (25 N. D. 298, 141 N. W. 740), and note thereto; Richardson v. State, 100 Miss. 514 (56 South. 454). Counsel for the prosecution urge that we should not reverse the conviction for this error unless it is apparent that the defendant was prejudiced thereby. We cannot on this record say affirmatively that he was not. The only corroborative evidence offered was that of the doctor and the complaint made by the prosecutrix about a month after the date of the alleged offense. On the cross-examination of Elizabeth, she was shown a small book, on one page of which appeared some obscene matter, written in both the French and German languages. She denied that she had written the matter therein. Counsel for the defendant sought to show that she had so admitted to the defendant, but was refused permission to do so. Much latitude is allowed in permitting evidence to be introduced which may affect the credibility of a complainant in this class of cases. The fact that she has made similar charges against others may be shown. People v. Evans, 72 Mich. 367; People v. Wilson, 170 Mich. 669 (41 L. R. A. [N. S.] 216). We are impressed, however, that the language of the writing cannot be said to indicate a mania for accusing men of rape or that it is of a nature to indicate such a morbid condition of mind or body as justified its reception. Mrs. Bees was called as a witness by the prosecution. Her testimony on cross-examination was apparently disappointing. On re-examination counsel asked her: “Don’t you remember of saying to Mrs. Beaumon ‘no wonder the girl wants to get out?’ ” [128] to which she answered, over objection, “I don’t know, I don’t believe so.” The answer, even if inadmissible, was not so prejudicial as to warrant a reversal. Anna Werner, the wife of defendant, called by him as a witness, testified: “I never saw any questionable relations between Frank and the girl while in Ferndale.” On cross-examination, she testified: “Q. Do you remember telling Mrs. Beaumon that Frank was planning on taking the girl and leaving you? “A. No — not that kind of a statement, ! never made that kind of a statement. “Q. And that he was using the girl all of the time? “A. No, sir, no.” In rebuttal, Mrs. Beaumon was called and permitted to testify that Anna had made such statements to her. The court carefully instructed the jury, both at the time it was received and afterwards in the general charge, that this testimony was received solely for the purpose of affecting the credibility of the witness. We find no error in this. When the wife voluntarily became a witness for her husband, her testimony was subject to the same rules of cross-examination and impeachment as applied to all other witnesses. People v. Toner, 217 Mich. 640. The conviction and sentence are set aside and a new trial ordered. The defendant is remanded to the custody of the sheriff of Oakland county to await such trial. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.