215 La. 396

#### STATE v. WOOD et al.

No. 39271.

Supreme Court of Louisiana.

April 25, 1949.

*798L. G. -Campbell, of Benton, for appellants.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Cu-lligan, Asst. Atty. Gen., and James E. Bolin, Dist. Atty., of Springhill, for ap-pellee.

PONDER, Justice.

The -defendants, Wilson Wood, Wyatt Wood -and Gentry Wood, were convicted of the crime of simple kidnapping and sentenced to serve four and one-half years in t-he penitentiary. They ha-ve appealed from the -conviction and -sentence.

The indictment under which t-he defendants were convicted -charged -them with intentionally and -forcibly carrying Ori-ce Parker, a female person over the age of fourteen years, from one place to another without her -consent. On trial of -the -case, the prosecutrix -testified that the defendants forcibly seized her and another girl, Mary Lee Y-oun-g, -and carried them in -an automobile into the Parish of Bienville where tw-o of the defendants -raped her. S'he testified that the defendants brought her ¡back in the automobile -into Bossier Parish and left her in the road near her home.

Bill of exception No. 1 was taken to -the ruling of -the trial judge -permitting the prosecutrix to testify concerning the rape. Bill of exception No. 3 was taken to the ruling -of the trial judge allowing a practicing physician, who had examined the prosecutrix two days after the offense was committed, to -relate what he ascertained from the -examination.

(Counsel for the defendants contends -that the admission of this testimony was erroneous and prejudicial to the -defendants. He bases his- contention -on the ground ¡that the evidence was not relevant because -th-e statutory crime of kidnapping required no proof of motive and that the evidence was of no probative value to show the lack of consent in taking or -carrying the prosecutrix to -the point of -the alleged atta-c-k. Pie advances the -argument that the evidence -did not tend to. prove force and that the specific intent to commit the act -of unlawful intercourse is not ■an element -of the -crime of kidnapping.

Under the provisions of Article 441 of the Code of Criminal Procedure the evidence i-s admissible to -show intent and -the use -of force. Moreover, where several felonies are parts of the -same transaction evidence of t'he entire transaction is -admissible on the trial of an indictment for any one of the offenses. State v. Vines, 34 La.Ann. 1079; State v. Anderson, 120 La. 331, 45 So. 267; State v. Guillory, 201 La. 52, 9 So.2d 450; State v. Ferrand, 210 La. 394, 27 So.2d 174, 167 A.L.R. 559 and State v. Jones, 211 La. 387, 30 So.2d 127.

Bill of exception No. 2 was taken to the ruling of the trial judge permitting the prosecutrix to testify that she was fifteen years of age. Counsel contends that the evidence -of -t-he -age of the prosecutrix was immaterial and 'highly prejudicial to the defendants. He -bases his -contention on the ground that the statute under which the defendants were charged makes -no distinction between the kidnapping of persons of -different ages and that -the admission of the- -evidence of the youthful age *799oí the prosecutrix was not a material fact at issue.

The defendants were charged in the indictment with kidnapping a 'female over fourteen years of age and evidence of the prosecutrix’s age was admissible to prove this allegation. Moreover, we know of no reason why the age of a witness would not be admissible in evidence.

Bill of exception No. 4 was taken to the ruling of the .trial judge allowing the State to bring out on cross-examination from Mary Lee Wood, a witness for the defendants, that she had been treated for a venereal disease.

Counsel for the defendants contends that the evidence had no bearing on the guilt of the accused and that cross-examination of a witness is strictly limited to questions forming a basis of impeachment of facts pertinent to the issue. The authorities he cites to support his contention are to the effect that a witness cannot be cross-examined on a collateral or irrelevant fact merely for the purpose of contradicting the witness should the witness deny it. We find no fault with the authorities cited but they are not applicable.

The defendant in his motion for a new trial alleged: “That the Court erred in permitting the State through the District Attorney, to propound questions to Mary Lee Young Wood, testifying on behalf of the defendant, who was allegedly present at the time of the commission of the alleged crime, tending to show that she and the prosecuting witness contracted a venereal disease as a result of such intercourse.”

The prosecutrix testified that the defendants kidnapped her and this witness. Subsequent to the commission of the offense and prior to the trial, this witness married one of the defendants who the prosecutrix testified had raped her. The evidence was offered to prove the witness had contracted a disease similar to the one that the pros-ecutrix had contracted from one of the defendants. The witness took the stand for the defendants and testified that they were not the three men who kidnapped her and the prosecutrix. She had identified the three defendants shortly after the commission of the crime as the ones who had committed the offense. The prosecutrix’s mother and a deputy sheriff testified that this witness had identified the defendants as being the guilty parties.

The evidence was relevant under the provisions of Articles 490 and 492 of the Code of Criminal Procedure to test her credibility. It was also relevant to corroborate the testimony of the prosecutrix and disprove the testimony of the witness.

For the reasons' assigned, the conviction and sentence are affirmed.

O’NIELL, Chief Justice

(dissenting).

The defendants, Wilson Wood, Wyatt Wood and Gentry Wood, were convicted of the crime of simple kidnapping and sentenced to imprisonment in the penitentiary for four and a half years.

It appears from the statements made or approved by the trial judge in the bills of exception that the prosecution was for the kidnapping of Orice Parker, one of two young women who were involved in the affair. The other one of them, Mary Lee Wood, married one of the three defendants, Wilson Wood, about two weeks after the date of the alleged kidnapping, and on the trial of the case was a witness for the defendants. She testified that the three young men who were then on trial were not the men who kidnapped her and the prosecuting witness, Orice Parker, and had sexual intercourse with them on the occasion of the kidnapping.

There are three bills of exception in which the defendants complain of the judge’s allowing the state to introduce1 evidence that the defendants raped or had sexual intercourse with the two young women on the occasion of the alleged kidnapping. The bill in which the salient facts disclosing the error of the judge are stated completely is Bill of Exception Number IV, which reads as follows:

> “Be it remembered that on the trial of this cause the District Attorney on cross-examination propounded the following objectionable questions to Mary Lee Wood, nee Young, a witness sworn in chief for the defendants; said objectionable questions being as follows, to-wit:

> *800“Q. ‘Did Dr. McCuller treat you for anything resulting from your relations with these boys?’ A. ‘Yes sir, he gave me some shots.’

> “Q. ‘What did he give you these shots for?’ A. ‘I don’t know. I know what he said.’

> “Q. ‘Did he give you more than one shot?’ A. ‘Yes sir, we went up there two or three times.’

> “Q. ‘What did he say the shots were for?’ A. ‘He said they were for a bad disease.’

> “To which questions the defendants, through counsel, then and there objected for the following .reasons, to-wit:

> “Even though the witness was under cross-examination, such testimony was not relevant to [the] crime charged and would only have a tendency to prejudice the minds of the jurors against the defendants. That the mere fact that this witness was placed on the stand by the defendants did not license the District Attorney to go completely outside the events surrounding the crime charged under the guise of testing the credibility of the witness.

> “Whereupon, the Court overruled the defendants’ objections, recalled the jury, which had been previously removed, and permitted the questions to be asked and answered in the presence of the jury; to which ruling of the Court, the defendants, through their counsel, then and there excepted, reserved these bills of exception, and made the evidence of said witness a part of these bills of exception, which, having first been tendered to the District Attorney, were given to the Judge for his reasons and signature.

> “Signed — L. G. Campbell,

> attorney for defendants.”

[The following statement per curiam was inserted by the judge before he signed the bill]:

> “This witness was on cross-examination. She took the stand and testified for the defendants, saying that they were not the three men that picked [up] her and the Parker girl. Shortly after the crime had been committed she [Mary Lee Wood] identified the three as the men [who 'had had sexual intercourse with the girls on the occasion of the kidnapping.] She denied this on the witness stand, but her mother took the stand and testified that she did identify them. Also the mother of the Parker girl and W. H. Horton, deputy sheriff, .testified that she [Mary Lee Wood] had identified them.

> “In view of her testimony on direct examination I think the district attorney had the right to ask the questions and most anything else to test her credibility. (Sgd) J. F. Mclnnis, Judge.”

In effect this witness, Mary Lee Wood, as a result of the cross-examination, informed the jury that she had contracted a venereal disease as a result of having been raped. But the important fact was that she already had told the jury that the three defendants then on trial were not the same men who had kidnapped her and raped or had sexual intercourse with her, and though the prosecuting attorney in his question asked if she had been treated for anything resulting from her relations with “these” boys, and although she answered that she had been treated for a venereal disease, she meant, of course, that she had been treated for a venereal disease which she had contracted as a result of her relations with the boys who, she had stated, had kidnapped and raped or had sexual relations with her. She did not intend to refer to the defendants because she had just stated that the defendants were not the parties who had kidnapped and raped or had sexual relations with her. With this explanation of the testimony, it is clear that the trial judge committed a reversible error in allowing the witness, Mary Lee Wood, to leave the jury with the impression that the three men on trial had raped or had 'had sexual intercourse with the girls and had given them a venereal disease. Such evidence was not only prejudicial to the three defendants on trial but it was unfair to them in that it identified them as being the same three who had sexual intercourse with the girls and gave them the venereal disease. And that in turn — erroneously — identified the three young men on trial as the parties who committed the crime of kidnapping.

For these reasons I respectfully dissent from the prevailing opinion in this case.