Opinion
05-27-1902
STATE v. PUCCA.
Herbert H. Ward, Atty. Gen., and Robert H. Richards, Dep. Atty. Gen., for the State. Howell S. England, for defendant.
Lugi Pucca was indicted for using a female child for the purpose of sexual intercourse. Verdict, "Not guilty."
Argued before , and GRUBB, J.
Herbert H. Ward, Atty. Gen., and Robert H. Richards, Dep. Atty. Gen., for the State.
Howell S. England, for defendant.
At the trial the state adduced evidence to the effect that the prosecuting witness, Rosalio Emiedo, an Italian girl, was 12 years old at the time of the commission of the alleged crime on February 1, 1902; that on said date the prisoner had sexual intercourse with the prosecuting witness in the bedroom of his house at Second and Washington streets in the city of Wilmington; that afterwards he showed her a large knife, and said to her, if she told on him, he would kill her, and thereupon gave her some money, and let her go to her home; that the child did not tell her mother, but, on the contrary, endeavored to conceal the crime from her mother; that finally the latter, suspecting that something was wrong with the child, questioned the latter, and discovered what the trouble was; that afterwards the police surgeon, on behalf of the state, made an examination of the girl's private parts, and as a result thereof found her physical condition to be not inconsistent with the story that she had told.
Mr. England, for the defendant, asked the court to order an examination of the prosecuting witness by a physician other than the police surgeon, stating that he desired this to be done for the purpose of showing that she was not physically capable of sexual intercourse, and that a fair examination of her parts would show that fact, and that, therefore, she had not been used for the purpose of sexual intercourse.
LORE, C. J. We make the order that the prosecuting witness be examined by a competent physician during the noon recess, and under such circumstances as to insure entire fairness. The court understands that Dr. Josephine M. R. White is satisfactory to both the state and the counsel for the defendant. The doctor will, therefore, make the examination under the direction of the court.
Mr. England asked the prosecuting witness, in cross-examination, the following question: "Tell the court whether or not, about the 1st of April of this year, George Shelton did not, in going into a privy near the home of Lugi Pucca, find you in there with two little boys?"
Objected to by the Deputy Attorney General as immaterial.
Mr. England stated that he was not attempting to impeach the moral character of the prosecuting witness, but was only testing her veracity; that, if she denied in her reply that she was there with the two boys on the occasion mentioned, he could prove that she was, and thus contradict her.
LORE, C. J. The question being entirely immaterial and irrelevant to this issue, you could not contradict her, but would be bound by her answer. We sustain the objection.
The defendant, Lugi Pucca, was asked, in cross-examination by the Deputy Attorney General: "Why did you take Rosalio into the bedroom?"
Objected to by counsel for defendant as argumentative, and assuming that which the witness had testified he did not do.
Mr. Richards, Deputy Attorney General, contended that the question was in cross-examination; that the defendant had, on direct examination, denied the whole transaction, but the state had not asked him this question before.
GRUBB, J. The state has admitted that the defendant has not said that he did take her into the room, and the question objected to assumes that he did, and Is, in my opinion, argumentative, and therefore improper.
LORE, C. J. I do not know of any such limitation in cross-examination. You have the right to test the defendant's knowledge, his accuracy, and put him to the test by asking, "Why did you take Rosalio into the bedroom?" It is not what he said, but what he did. There is a division of the court on this question, and the objection falls.
Counsel for defendant asked one of his witnesses the following question: "Are you acquainted with the general reputation for truth and veracity of Rosalio Emiedo in the community in which she has lived up to within two months of this time, at Natalie, Pennsylvania?"
Objected to by the Attorney General as irrelevant, the proper form of the question being whether the witness knows the reputation of the prosecuting witness in the community in which she now lives.
LORE, C. J. Do you propose to follow that up, and connect it with the present time?
Mr. England: Yes, sir. These people have just come to town, and it was impossible to get anybody that knew of them here. This witness has known this prosecuting witness for years at Natalie, Pa., the town from which they moved to Wilmington some time in January of this year.
LORE, C. J. We think it is admissible, but bring it within a month or two of the present time.
The witness then testified that he knew the reputation of the prosecuting witness at Natalie, Pa.; that it was bad, and from that reputation he would not believe her on her oath. The testimony on both sides was then closed.
LORE, C. J. (charging jury). Lugi Pucca, the prisoner at the bar, is charged in the indictment with using, for the purpose of sexual intercourse, on the 1st day of February, 1902, in this county, Rosalio Emiedo, a female under 18 years of age. The charge is brought under the act of assembly passed on March 29, 1889 (Laws 1889, p. 951, c. 686), which provides that "whoever takes, receives, employs, harbors or uses or causes or procures to be taken, received, employed, harbored or used a male or female under the age of eighteen years, for the purpose of sexual intercourse, shall be deemed guilty of a misdemeanor." Under this indictment it is incumbent upon the state to prove to your satisfaction beyond a reasonable doubt that on or about the time alleged in the indictment, in this county, the prisoner, Lugi Pucca, did use this child, she then being under 18 years of age, for the purpose of sexual intercourse. Crimes of this character are not ordinarily perpetrated in the open, but privately and secretly; and they usually depend largely upon the testimony of the two participants in the offense, if any such was committed. This is a charge which, in common experience, is comparatively easy to prove, but difficult to meet in order to find a verdict of guilty in this case, you should be satisfied from the evidence beyond a reasonable doubt that in this county, on the day alleged, this prosecuting witness was so used, and that she was then under 18 years of age. And in considering the evidence we would call your attention, as requested by defendant's counsel, to the fact that testimony of the previous good character of the defendant, when offered in the case, is to be taken like any other evidence tending to show the innocence of the accused, and for whatever that testimony is worth, in your judgment, under all the facts and circumstances of the case.
Again, it is incumbent on the state to prove all the material facts of this case—such, for instance, as the minority of the child, the perpetration of the crime in this county, and the actual fact of sexual Intercourse—beyond a reasonable doubt; for, if there be a reasonable doubt from the testimony upon any one of these essential elements of the crime, that doubt should inure to the benefit of the accused in a verdict of not guilty. You have heard the evidence in this case, and it is for you to say, upon that evidence, whether the prisoner, Lugi Pucca, is guilty of the crime charged or not guilty.
Verdict, "Not guilty."