People v. Elco

Grant, J.

Respondent was convicted of sexual intercourse with one Pearl Arnold, a female under the age of 16 years.

1. The principal ground of error relied upon for reversal is that there was no competent proof to establish the girl’s age. The respondent is the girl’s uncle, and was 30 years old. The complaint was not made either by the girl or her mother, but by a neighbor. She had been delivered of a child.- The girl and her mother were both witnesses hostile to the prosecution, and desired to shield *521 the respondent. Both the girl and her mother, upon the examination, testified that the girl was under 16 years of age at the time of the alleged intercourse. Upon the trial both testified that they were mistaken, and that she was a year older, which made her more than 16 years of age. The girl also denied ever having sexual intercourse with the respondent. Several witnesses testified that the respondent told them that he had “gotten the girl into trouble; that her mother threatened prosecution; and that the girl was under age.” He did not deny these statements, taking advantage of his constitutional right not to testify. The jury were entitled to consider the statements of the respondent as to her age, and as well her appearance. Com. v. Emmons, 98 Mass. 6; Com. v. Phillips, 162 Mass. 504 (39 N. E. 109); People v. New York County Justices, 10 Hun, 224. What the respondent meant by using the expression, “The girl was under age,” was for the jury.

It is impossible to read this record without reaching the conclusion that the girl was infatuated with the respondent, and that she testified falsely for the sole purpose of shielding him. No other conclusion can with reason be reached than that he had sexual intercourse with her during the time alleged in the information. The mother had had several children, and was compelled to change the dates of the births of all of them, from that to which she testified upon the examination, in order to make the age of Pearl above 16. We think there was conflicting evidence in regard to her age, which made it a proper question for the jury-

2. Evidence was permitted tending to show that Pearl and respondent left Michigan and went to Indiana, where her child was born, and to show intimate relations subsequent to the time of the commission of the crime. This testimony was offered, not to establish other and subsequent offenses, but to show his treatment of the girl after the commission of the alleged offense, and after he ascertained that she was with child. This testimony is not *522 within the rule established in People v. Clark, 33 Mich. 112; People v. Etter, 81 Mich. 570 (45 N. W. 1109); and People v. Fowler, 104 Mich. 449 (62 N. W. 572). In these cases the prosecution was permitted to show subsequent acts of sexual intercourse to prove the one charged. This was held improper. This case comes within the rule established in People v. Hubbard, 92 Mich. 326 (52 N. W. 729), People v. Craig, 116 Mich. 388 (74 N. W. 528), and Matthews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243), and authorities cited, in which it was held competent to show the subsequent and intimate friendly* relations of the parties. The court very carefully instructed the jury upon this point, in accordance with the rule of these decisions.

3. Testimony was introduced showing admissions by Pearl that she and the respondent lived together in Indiana. The objection made to this testimony was that it was immaterial, and that the admissions were not made in the presence of the respondent. The court stated that he admitted them only as bearing on the credibility of the witness Pearl, she having denied that she there lived with respondent. No objection was made to this testimony upon this ground. If the witness Pearl had been called as a witness by the respondent, this testimony would have been clearly admissible. As already stated, it was apparent that she was in fact his witness, and testified for the purpose of protecting him. Whether, under such circumstances, it was competent for the people to show contradictory statements made by her, we need not consider, inasmuch as this point was not raised in the court below. I do not think upon this record that the case should be-reversed for the admission of this testimony.

Conviction should be affirmed.

Moore, J.

I cannot agree with Mr. Justice Grant that testimony of admissions made by Pearl Arnold not in the presence of the accused was admissible. The case is *523 directly within People v. Fowler, 104 Mich. 449 (62 N. W. 572), and the cases there cited.

The conviction should be set aside, and a new trial ordered.

Hooker, C. J., and Montgomery, J., concurred with Moore, J.