Mirick v. State

<p>1. Indictment and Information <@=>44 — Lost Indictment — Substitution of Copy.</p> <p>Where there is no intimation in the record that a copy substituted for a lost indictment was not a substantial copy of the original, no error is shown by the substitution by order of the court on written motion, under Yernon’s Ann. Code Or. Proc. 1916, art. 482, relating to lost indictments.</p> <p>2. Ckiminal Law <@=> 132 — Change of Yenue —Time.</p> <p>An application for change of venue on the ground of prejudice after nine jurors had been selected was too late; the state having contested the motion, denying everything therein, and controverting the knowledge of the com-purgators, under Vernon’s Ann. Code Or. Proc. 1916, art. 630, relating to change of venue.</p> <p>3. Criminal Law <@=»1092(4) — Matters Reviewable — Bills of Exceptions — Time fob Filing.</p> <p>Under Yernon’s Ann. Code Or. Proc. 1916, art. 845, relating to time for filing of bills of exception, a bill of exception filed more than two months after the court had adjourned for the term cannot be considered.</p> <p>4. PIabeas Corpus <@=>50 — Bail — Time fob Application.</p> <p>There was no error in refusing accused’s application, made during the trial, for writ of habeas corpus, so as to try to get bail during the further pendency of the trial; such application coming too late.</p> <p>5. Criminal Law <@=>1091(5) — Bill of Exceptions — Matters Reviewable.</p> <p>A bill complaining of the exclusion of testimony, which does not state what the objections of the state were, nor on what ground the court refused to admit the evidence, cannot be intelligently reviewed.</p> <p>6. Witnesses <@=>388(2) — Impeachment—Laying Predicate.</p> <p>A witness cannot be impeached by showing inconsistent statements unless the proper predicate is laid.</p> <p>7. Criminad Law <&wkey;1091(3) — Matters Reviewable — Bills oe Exception.</p> <p>A bill in a rape case complaining that on cross-examination defendant was asked if his wife did not slap a coupile of little girls on the street because of his improper conduct towards them, that he objected because it was immaterial, irrelevant, and calculated only to prejudice his rights, and that it was overruled, was too meager to require that it be passed on.</p> <p>8. Criminal Law <&wkey;1170%(2) — Harmless Error — Evidence.</p> <p>In prosecution for rape, where defendant had testified that his wife was visiting in another state at the time because her mother was sick, overruling an objection to a question on cross-examination as to whether defendant’s wife had not slapped a couple of little girls because of his improper conduct toward them was harmless, where his answer was that he did not know of it.</p> <p>9. Rape <&wkey;7 — Carnal Knowledge — Extent op Penetration.</p> <p>To constitute rape, it is unnecessary that the penetration should be perfect, nor that there should be an entering of the vagina or rupture of the hymen; the entering of the vulva or labia being sufficient.</p> <p>10. Criminal Law <&wkey;1170(l) — Harmless Error — Evidence.</p> <p>In rape case, where the testimony unquestionably showed penetration to the extent required by law, exclusion of testimony of a physician that the hymen would have been ruptured if defendant had had intercourse with the complaining witness was harmless.</p> <p>11. Criminal Law <&wkey;>366(l) — Evidence — Rape.</p> <p>In rape case_, witnesses could testify that they heard the girl, who was locked in defendant’s room, cry out: “Don’t do that! let me alone! I will tell mamma. I want to go home.”</p> <p>12. Criminal Law <&wkey;1169(2) — Harmless Error — Evidence.</p> <p>Defendant cannot complain of admission of testimony, where another witness had testified to substantially the same thing without objection.</p> <p>13. Criminal Law <&wkey;36á(3) — Res Geste.</p> <p>In a rape case, an exclamation, “My God!” made by defendant when witnesses broke into room where he had the girl, was admissible as res gestse.</p>