This is an appeal from a judgment of conviction for assault with intent to commit rape.
Appellant (Kotthoff), forty years of age, a discharged veteran of World War II, was employed by the Orange Transportation Company, as a truckdriver; he made three round trips from Twin Falls to Salt Lake City each week. According to the vice-president of the company, appellant bore a good reputation. He was "considered a good man". Another, when asked as to appellant's "being a law abiding citizen", said: "I have always found him so. * * * every one speaks highly of him." Mrs. Bright, owner of the apartment house where appellant lived, testified to his "good" reputation.
October 19, 1945, appellant (Kotthoff) and wife moved into an apartment in Twin Falls. November 19, 1945, Lorene Hann, prosecutrix, with her husband, moved into the same apartment house; they were married September 25, '45. Originally the house was a single residence property, converted by the owner, Mrs. Bright, into a two-apartment house. The two couples (Kotthoffs and Hanns) share a refrigerator, which was in the kitchen of the Hann apartment, a lavatory and bathroom connecting the two apartments. The two doors (inside of the bathroom), one leading from the Hann apartment and the other from the Kotthoff side, were equipped with locks. There were, however, no locks on the doors inside of the Hann apartment. After the latter couple moved into the house, appellant and wife had locks put on the doors inside of their apartment.
It was customary for appellant's wife to to go into the Hann kitchen to make use of the refrigerator, also to see about hot water which was heated by an incinerator there. When asked as to whether the latter resented that, appellant's wife replied: "She seemed to." In order to heat the bathroom for either couple, it was necessary to leave the door to each separate apartment open. A great deal of friction and some differences between the parties arose over the Harms partying and making so much noise that appellant and his wife could not sleep. Mrs. Kotthoff testified to several "altercations" with the Hanns and had "asked them to be more quiet because we couldn't sleep". Complaint was also made because the bathroom door leading to the Kotthoff apartment was locked "half of the time * * * they [Hanns] consistently forgot to unlock the door so we could get in". The relations between the two couples were not friendly; they did not neighbor.
One "Saturday" night, soon after the Hanns moved into the apartment, they gave *Page 323 a "housewarming" and neighbors complained on account of the noise, "a lot of car doors banging and music" until "two-thirty" in the morning. When asked whether there had been "some wild parties there", appellant's wife replied: "There had been one party" and "drinking before that." As to how the word reached Mrs. Bright, the owner of the house, Mrs. Kotthoff said she believed Mrs. Bright's "sister wrote to her." Mrs. Bright stated that the "neighbors" had told her.
November 30, 1945, less than two weeks after the Hanns moved into their apartment, a telegram (dayletter) was received by the Kotthoffs and three days later a letter followed, both sent them by Olen N. Sutton, Memphis, Tenn., apparently the agent for the owner, Mrs. Bright. On the day the letter was received, appellant delivered the telegram and letter to Mrs. Hann; he handed them to her in the kitchen of her apartment. According to testimony of the prosecutrix and appellant, this was the only time he had been in the Hann apartment, except for the time the two couple were introduced by Mrs. Bright. Prosecutrix accepted the telegram and letter but did not read or discuss them with appellant. They read as follows:
"KHA 17 DL PD — MEMPHIS TENN 30 858A
1945 NOV. 30 AM 8 23
Mr. and Mrs. Paul Kotthoff —
325 3 Av. West Twin Falls Ida. —
Mrs. Kutthoff, Letha writes that the Hanns are really wild, told by neighbors, and you are strictly in charge of house, you take the radio in your apt letter will follow to you for Hanns, carry out my orders you may act as Mgr, regards —
Olen Sutton"
"P.S. Ann show this letter to both Mr. and Mrs. HannPlease
30Hotel Peabody Memphis, Tennessee
Friday 9 A. M.
Hello Paul Ann
I just sent you a 50 word day wire so here is the letter. I just had a letter from Letha, and she is quite worried about the other part of the house, as you folks know and Letha and I both thought, that Mr. and Mrs. Hann were such innocent kids, I want you Paul to show them this letter. Letha I both want you Paul to stay, sort of look after the house, we will not have any late wild parties at no time in that house by them or no one else. You Paul were there a month you both were so quiet that one would hardly know you were there. I expect to have such conduct carried out. As to them having company that is fine, but not wild parties.
You know Ann I've known Letha all my life, and it is my duty to look after her interests. She wrote me about it. Ann you Paul take the big Radio and put it in your apt. we forgot it before we left, just cover it up with somethingplease. *Page 324
Now if Mr. Mrs. Hann want to stay there they must obey you, if now we will ask you to rent the apt. to some good couple that you Paul feel like you would like to have for your neighbor. Now we are not coming back. I'm glad we heard about this and orders must be obeyed. 1030 P. M. is late no ink (balance of letter written in pencil] enough for company to visit 11 p. m. at the latest and above all respect has to be shown to all.
Please write and tell me as Letha worries about things.
Best wishes kindest regards to you Paul
Olen N. Sutton Gen. Del. Memphis, Tenn."
In telling of the alleged attack, prosecutrix testified appellant had tripped her or knocked her down on the bathroom floor and attempted to rape her, December 14, 1945, about the time she was expecting her husband home for lunch (1 to 1:30 p.m.). Appellant did not accomplish his purpose but prosecutrix testified to bruises on her elbows, knees and ankles. Her husband corroborated her testimony, and also Dr. Murphy, to whom she went about 4:30 the same afternoon. After the alleged attack, prosecutrix returned "to the kitchen to put the water on for the coffee." After her return to the apartment, she testified she "heard something that sounded like a door opening, and it frightened" her; she ran from the kitchen out the front door to her husband's place of business, but her husband had already left for home. Mr. Arnold, who worked at the same refrigeration plant with prosecutrix' husband, said Mrs. Hann "came in and stood around by the stove and was hysterical." It took him "ten or fifteen minutes to find out what was the matter"; she "Had no coat or hat on." As to statement made by prosecutrix to Arnold, this was improper and hearsay and made outside the presence of appellant. Arnold then went back to the Hann apartment and found Hann there; this was about 1:30 o'clock. "Around two o'clock", accompanied by her husband, prosecutrix called at the police station to see Gillette, chief of police. Following the talk with prosecutrix and husband, and accompanied by a patrolman and detective, Mr. Gillette with the Harms went up to appellant's apartment. Appellant was then arrested and taken to the police station. There was no warrant for appellant's arrest, although appellant "demanded" one, according to Gillette. Neither did the chief have a warrant when placing appellant in a cell; and there had been no sworn deposition or complaint charging him with any offense when placed therein.
Police Officer Wiley, who accompanied Mr. Gillette to appellant's apartment, at the time of the latter's arrest, testified to examining appellant's feet (both at appellant's home and later at the police station) and observed "a scratch on the top of his left foot over the instep." Appellant "told me [Wiley] that morning handling freight at Burley he had dropped a box of freight *Page 325 weighing three hundred pounds on his foot." Prosecutrix testified she had "stamped his feet and kicked his shins", when trying to "escape" from appellant; that she had been wearing "heeled shoes, about an inch high" at the time. Testimony was also introduced concerning two towels, one of which was supposedly used at the time of the attack. Gillette testified he had looked for the towel but had not found it; that he had "the mate to it" in his office. However, in prosecutrix' testimony, she related that "we had a small guest towel hanging on the door [bathroom], given to me as a wedding gift", indicating that there was only one of these towels. (Italics supplied.) At the time of appellant's arrest, on going through the community bathroom, on the way to appellant's apartment, Gillette testified to the "clean linoleum on the floor"; and, in answer to the question, whether he saw anything "unusual that would attract attention or notice", replied: "No sir, I didn't". Though slight, this would tend to rebut part of prosecutrix' testimony.
Mr. Gillette admitted on the witness stand that the questions asked by him of appellant, while in his office at the police station, were all concerning the alleged act as related by prosecutrix in her statements to Gillette. The state made objection to these questions and the objection was sustained by the court, saying: "It is purely argumentative." This ruling is clearly erroneous. There was "no typed statement and no word for word record made of the conversation" between Gillette and appellant. According to Gillette's testimony, appellant admitted an attack on prosecutrix, also that he had "made a serious mistake" and couldn't figure out why he had done it. However, on the witness stand, appellant denied all such testimony.
Immediately following the alleged attack by appellant, prosecutrix and her husband left their apartment and lived at her mother's house; they did not stay at the apartment the night of December 14th. Later they went back to get their clothing and belongings but did not live there again.
December 17, 1945, three days after the alleged attack, prosecutrix sent the following letter to Mrs. Bright:
"Twin Falls, Idaho Dec. 17, 1945
Dear Mrs. Bright —
Kenney and I have the telegram and letter from Mr. Sutton in your behalf — no doubt you know all about it. But in case you don't know about the latest development, I am writing to you.
About ten minutes till one o'clock Friday I walked into the bathroom. Mr. Kuthoff's door was open, which is unusual, and it startled me. However, I told myself not to be foolish, and walked over to close it. As I reached out to close the door he came into the bathroom, completely naked, and attacked me. I ran for my door, but he pushed me in a corner and locked my door. Then we struggled — it was the most beastly *Page 326 thing you can imagine. He threw me on the floor, and finally he tore my panties off of me. He would actually have raped me, but he came all over me, so he couldn't.
I know those people have poisoned your mind toward Kenney and I, but I am enclosing a clipping from the paper and hope you believe it. My lawyer hasn't asked Mrs. Kuthoff if she plans to move, yet, but I am asking you to see that she does. You can file an emergency complaint with the local board here and she will have to leave within 30 days.
You appeared to Kenny and I to be up-standing citizens. However, since you so evidently approve of the Kuthoff's and believe a pack of lies about us we don't know what to think. If you still don't ask them to move, we will draw our own conclusions.
Sincerely, Mrs. Kenneth F. Hann"
The cause was called for trial before the court and jury at the January, 1946, term at Twin Falls. Verdict was returned by the jury, finding appellant guilty as charged, and he was sentenced to imprisonment in the state penitentiary for a term of one to fourteen years. Later, on motion of defendant, he was admitted to bail in the sum of $1,000, pending appeal to this court.
Eight errors are assigned by appellant directed to improbability of prosecutrix' testimony; the purported confession of appellant, and its admission in evidence; and error of the court in giving certain instructions, and refusal to give others requested by appellant.
It is clear to the writer of this opinion that the court erred in admitting in evidence to the jury the so-called confession made by appellant to the chief of police and the policeman, Wiley. When reduced to a final analysis, it all comes to this: The chief got his statement of the case from the prosecutrix in her own language and her own story of it. The chief simply used the same statements she had made, in the absence of appellant, and put them in interrogatory form to appellant, without even naming the offense with which he was charged or apprising him of the fact that anything he said would be used against him. In lieu thereof, the chief repeatedly said to him he was charged and "under arrest for suspicion of assault with intent to commit rape"; whereas, in fact he was being held without warrant or verified complaint.
On the contrary, the defendant had been awaked from sleep in his own home and placed under arrest without either a warrant or verified complaint. He was not advised of the nature or kind of offense with which he was charged but, on the other hand, he was required to dress and escorted directly to the jail, where he was incarcerated without right of counsel and without any charge being made against him, and, after he had been detained in the jail for more than an hour, he was taken to the office of the chief of police and there put *Page 327 through a cross-examination, in effect dictated by prosecutrix (that is, interrogative form of statements made by the prosecutrix to the chief and in the absence of warrant of arrest or verified complaint, or even the name of the offense charged against him). This violates every known rule relating to the evidence of confession of a felony. Maki v. State,18 Wyo. 481, 112 P. 334, 33 L.R.A., N.S., 465.
In Maki v. State, supra, the supreme court of Wyoming, in a unanimous opinion, held:
"Accused while under arrest for homicide was taken before a coroner's inquest and asked whether he wanted to testify, but was not informed that he was not required to testify or warned that his evidence would be used against him, nor was he represented by counsel. Held that, in the absence of such information and caution, his evidence given at the inquest would be presumed to have been involuntary and inadmissible. * * *
"While the decisions are not in harmony as to the rights of one who is not under arrest for the crime under investigation at the time he gives his evidence before a coroner's jury as a witness, they are practically unanimous as to one who is under arrest and charged with the commission of the homicide at the time he is sworn and gives evidence before such jury. The person so under arrest and charged with the commission of the homicide, and who is without counsel, is entitled to be informed of his right to decline to be a witness, or to answer any question, and properly cautioned as essential elements in determining the voluntary character of his statements then and there made. He is physically restrained of his liberty. In that sense he is not free to do and act as he pleases, and there is a very natural presumption that this restraint extends to and affects his mind to the extent that he would not freely say or admit those things which might thereafter be used as evidence against him. This presumption is not, however, conclusive, but may be overcome if it be made to appear from the evidence that after being cautioned and informed as to his rights, the prisoner voluntarily submits himself to examination under oath. Until he is so informed and cautioned, the law does not recognize his mind to be sufficiently free from the impending peril of his situation so as to entitle his statements to admission as evidence against him. Not alone upon the question that they may be untrue, but that the mind must also be left free to act with knowledge of the possible consequences. Ashcraft v. Tennessee, 322 U.S. 143, 153, 64 S. Ct. 921,88 L. Ed. 1192, 1199. For definition of "confessions", see 20 Am.Juris., sec. 478, p. 417; 16 C.J., § 1468, pp. 717, 718; 22 C.J.S., Criminal Law, § 817, pp. 1425, 1426.
The policeman, Wiley, was not even present when the prosecutrix made her statement to Gillette but came in during the course of the questioning by the chief and heard the recitation of his questions by the hearsay route. *Page 328
The trial judge very properly heard this testimony in theabsence of the jury but after doing so clearly committed error in permitting the state to repeat the testimony and allowing it to go to the jury. The statements made by the prosecutrix to the chief of police, in the absence of the defendant, were wholly erroneous and purely hearsay testimony; nor did it amount to an outcry immediately following the alleged assault. In other words, an assault of this kind must be immediately made known in some way by the prosecutrix.
The mere fact that a man technically assaults a woman by improper laying hands on her is no evidence of his intention to commit rape upon her and to employ all force necessary to accomplish his purpose. The fact that defendant asked prosecutrix to kiss him and thereupon attempted to do so is no evidence that he intended to use such force upon her as might be necessary to rape her. State v. Neil, 13 Idaho 539,90 P. 860, 91 P. 318; State v. Bernhardt, 51 Idaho 134, 139,3 P.2d 537; People v. Dowell, 136 Mich. 306, 99 N.W. 23, 24. If such were the law, there would doubtless be thousands of instances where prosecutions might be made.
Indeed, the prosecutrix said she opened the door "to the bathroom about half an hour previous to this incident, * * * and Mr. Kotthoff was in the bathroom, [undressed] and he said 'Come right on in', and I thought he was as embarrassed as I was and slammed the door and went to the kitchen to continue cooking. He had neglected to lock our side of the door"; all of which would indicate that neither one took the matter very seriously and certainly would not indicate that he had an intent to commit a felony on the person of the prosecutrix.
In State v. Neil, 13 Idaho 539, 550, 90 P. 860, 863, 91 P. 318, this court announced the following rule, with reference to the proofs necessary to convict a defendant of the crime of assault with intent to commit rape, as follows: "In order to warrant a conviction of the crime of assault with intent to commit rape, the state must prove beyond a reasonable doubt every essential element of rape except the final consummation of the act. It must show beyond a reasonable doubt that the defendant made an assault upon the female, with intent to use such force as was necessary in order to have sexual intercourse with her, against her will and without her consent. When those facts are shown, the crime is complete, and a conviction is warranted." State v. Andreason, 44 Idaho 396, 399, 257 P. 370; see, also, State v. Whittinghill, Utah, 163 P.2d 342, 344; Hammond v. United States, 75 U.S.App.D.C. 397, 127 F.2d 752,753; 52 C.J., § 40, Notes 26, 27, p. 1028.
The evidence is too voluminous to quote in detail. The foregoing statement in chronological order is enough to well suffice in illustrating the failure of corroboration of prosecutrix, or even to show *Page 329 beyond a reasonable doubt that appellant had committed a felony or violated the person of prosecutrix.
An examination of the evidence and all the instructions satisfies us that the court erred in refusing to give defendant's instruction No. 1 covering the subject of confessions. Having admitted in evidence the statements of the prosecutrix made in the absence of defendant, and evidence of the prosecutor, Gillette, and officer, Wiley, as to what was said by defendant and Gillette (after defendant had been placed in jail for an hour without warrant or verified complaint), the court should have given an instruction, covering the admissibility of confessions, and stated the law on this subject. While defendant's requested instruction No. 1 was not clear and complete a statement as it might have been (Maki v. State, Wyo., supra), it was sufficient to call the subject to the attention of the court and to require a specific instruction thereon. However, as we heretofore said, the alleged confession should never have been allowed to go to the jury in this case. Otherwise, we find no substantial error in giving or rejection of instructions.
The judgment is reversed and the cause is remanded with authority to grant a new trial and, if a new trial is had, to exclude the evidence of the purported confession or admission of appellant, made while he was held in custody without warrant or verified complaint, and without being notified of his legal rights or having opportunity to consult with counsel.
HOLDEN and MILLER, JJ., concur.