State v. Lindsay

Evans, J.

The defendant was charged with the crime of rape committed on November 8, 1908, upon the person of Grace Hopkins, a child eight years of age. The facts and circumstances immediately preceding the , alleged rape are not greatly in dispute. On the date in question the defendant was living at Prairie City. Prior to October 20, 1908, he had lived at Colfax, and was manager of the telephone company. On Sunday, November 8, he rode from Prairie City to klitchellville, and from Mitchellville to Colfax in a single-seated, high-wheeled Holsman automobile. While at Colfax he took four children in succession for short rides in his automobile. The *404 first was a boy. The second was the “littp Hainey girl.” This little girl was sister to a young man who roomed at defendant’s bouse. While taking tbe Hainey girl riding, be was -accosted by Ruth Stofer and Grace Hopkins, the prosecutrix. They asked him to take them also for a ride. This be promised to do, and this be did do a short time later, after tbe “little Hainey girl” bad finished her ride. Tbe last-named two girls were aged eleven and eight, respectively, and were engaged in play at the Stofer home. Tbe defendant was acquainted with Ruth Stofer, but not with tbe prosecutrix. Upon returning, be first took Ruth Stofer for a ride of a mile or more, and brought her back to tbe starting place. He then took Grace Hopkins, tbe prosecutrix. Her story is that be took ’her to a field where “there were some trees,” and ravished her, and left her to walk home from tbe field. She does not know where tbe field - was. She has never been able to identify tbe place, although considerable effort was made in that direction with tbe assistance of friends and relatives. Tbe lapse of time was concededly brief, and tbe place must have been nearby. Tbe defendant’s story is that be took tbe prosecutrix a short ride of a mile or more, and that be returned to a point within four blocks from tbe place where be took her up, where be encountered an obstructed street, that she alighted at that point, and that be went on to Prairie City. He denies that be bad stopped anywhere else with tbe prosecutrix, and denies all improper conduct. On both trips with tbe little girls he met different persons upon tbe road. He also met persons after be bad started alone on bis trip to Prairie Oity. Several of these were witnesses for tbe state. All witnesses wbo attempted to fix tbe hour o;f tbe day fixed it as between five and six p. m. According to the story of tbe prosecutrix, tbe first persons she saw after the defendant left her were Mr. Van Billard and Mrs. Marquis. Mrs. Marquis fixed that time as 5 :30 p. m.

*405 I. The trial court gave to the jury the following instructions on the subject of alibi:

(20) The defendant claims as a defense • what is known in the law as an alibi; that is, that at the time of the commission of the alleged offense with which he is charged he was at a different place, so that he could not have participated in its commission. The burden of proof is upon the defendant to prove this defense by a preponderance of the evidence; that is, by greater or superior evidence. The defense of alibi to be entitled to consideration must be such as to show that at the very time of the commission of. the crime charged, if one was committed, the accused, was at another place and so far away, and under such circumstances that he could not by any ordinary exertion have been at the place whore the crime is alleged to have been committed so as to have participated in the commission thereof. If he has so established such defense, he is entitled to an acquittal.

(21) While the 'burden of proof is upon the defendant as to the alibi, you are further instructed that if the evidence as to the alibi, with all the evidence in the case, raises in your minds a reasonable doubt as to his guilt, you. should acquit.

(22) You are further instructed in reference to the law as to alibi that it is recognized in the law that the defense of alibi is one easily manufactured, and juries are generally and properly advised by the courts to scan the proofs of an alibi with care and caution. It is a legitimate and perfect defense if established.

Appellant complains of these instructions as having no basis in the record. We think this contention must be sustained. The only evidence pointed out to us by counsel for the state in support of these instructions is the evidence of a witness for the defendant who fixed the time of defendant’s return to Prairie City at five minutes before six. The prosecutrix testified that when she saw Mrs. Marquis it had been fifteen minutes or less since the defendant left her. The exact distance from Colfax to Prairie City does not appear, but it is a nearby town *406 in the same county, and there is no claim made on either side that the distance could not have been traversed within ■a half an hour. We find nothing either in the defendant’s testimony or in that of the - witnesses in his behalf which ■can be said to present the defense of alibi. On the contrary, the testimony of the defendant himself was that he -did take, the little girl riding at or about the time she says he did. He does not claim that it was physically impossible for him to have perpetrated the crime because of distance separating him from the prosecutrix. He concedes his presence with the little girl at or near the time of the alleged crime, but he denies that he perpetrated any crime upon her. We -think that the instructions upon this subject placed him and his defense in a false light before the jury. The findings of the jury would necessarily be adverse to such an alleged defense. There was no testimony on either side from which an alibi could be found in the sense in which that term is used in criminal cases, and in which it was defined by the court. We think, therefore, that the learned trial court erred at this point, and that the error was manifestly prejudicial.

II. Some other questions are presented for our consideration upon which we are not agreed. They may not arise upon another trial in the form in which they appear in this record.

For the error pointed out, a new trial must be ordered. Upon the record. as a whole, • we are not averse to such result. Reversed.