| N.D. | Jul 23, 1918
This is an appeal from the judgment of the district court of Morton county, entered upon the verdict of the jury finding the defendant guilty of the crime of rape in the first degree, and also from an order entered denying a motion for a new trial.
It is conceded by the appellant that the evidence is sufficient to support the verdict of the jury, but in the assignments of error questions are-raised relative to the conduct of the trial, from which it is argued that the defendant did not have a fair trial. There are twenty-one assignments of error, most of which relate to the admissibility of evidence. Most of the evidence, the admission of which is assigned as error, was not objected to at the time it was offered. On the contrary, a reading of the record discloses that counsel for the defendant availed himself of the opportunity afforded by the broad range of the examination of the state’s witnesses to extend his cross-examination, and that he attempted to impeach the various witnesses upon matters covered by the testimony that is objected to for the first time upon this appeal. Brief reference to some of the testimony will serve to illustrate the lack of merit in the appellant’s contention. Assignments 1, 3, 4, 7, and 8 refer to evidence given during the trial, to which no objection whatever was made, and relate to the complaint of the prosecuting witness made to her parents. The complaining witness and her father and mother testified to the circumstances under which she communicated her condition to her parents in connection with which the name of the defendant was used as the person who was responsible therefor. It is contended that the particular’s of the complaint (if such it was) are inadmissible; at least, insofar as they might embrace a hearsay statement identifying the defendant as the guilty party. But a reading of the record discloses not only that the defendant denied his guilt, but that, as a part of his defense, he sought to establish the guilt of another person. This was foreshadowed early in the trial by the cross-examination of the prosecuting witness, Mary Gartner, wherein it was attempted to commit her to an accusation against a third party, as the following testimony will amply show:
*499 A. I stated that my father and mother are the first persons I told that the defendant had sexual intercourse with me.
Q. Did you not tell the defendant’s wife, Mrs. Bushbacker, sometime before that in the month of August that you were in a family way from --person not the defendant) ?
A. I did not have anything to do with-.
Q. Answer my question. Did you not tell Mrs. Bushbacker that you had?
A. No, I did not tell Mrs. Frank Bushbacker that I was afraid that I was in a family way because my monthlies had stopped at that time.
Q. Did you not sometime in the early spring of 1916 have sexual
intercourse with-on the bed in the dining room where the bed
was while your mother and sister were upstairs?
A. Frank Bushbacker, and not-.”
Not having objected to the evidence in chief, and having in this manner taken the benefit of that portion of the testimony wherein the witnesses identified the defendant as the person against whom the prosecutrix made the complaint, the defendant cannot complain now of the evidence on account of its hearsay character. For a similar reason the admission of the testimony of the sheriff and the state’s attorney, which went in without objection and which relates to the complaint made to them by the prosecuting witness, in which the name of the defendant was used, cannot be relied upon as error. This disposes of the 9th and 10th assignments of error.
In view of the attempt of the defendant to raise a doubt of his guilt by implicating a third person, the testimony of the third person, denying his guilt, was clearly admissible. This disposes of the 5th and 6th assignments of error.
The 11th and 12th assignments of error relate to statements of the defendant himself: First, to the statement which the prosecuting witness claims defendant made to her concerning his familiarity with others; and, second, the statement by the defendant to one Marcus Helman, to the effect that Gartner, father of the prosecutrix, had said “that the father of Mary’s child was-” (a person not the defendant). These statements were both clearly admissible; the first, for the reason that it was a circumstance tending to show the relations between the de
The 13th assignment relates to the testimony of one Eva Kohler. This witness testified to the conduct of the defendant towards her and the prosecuting witness on an occasion in June, 1916, when she was visiting the latter.- According to her testimony, both the defendant and the prosecuting witness were present. The testimony relates wholly to acts of familiarity which would tend, circumstantially, to corroborate the evidence of the prosecuting witness, and was clearly admissible.
The remaining assignments of error requiring consideration relate to the instructions given to the jury. The court, in the course of his charge, said: “It is either rape in the first degree or no crime at all.” It is contended that, under the allegations in the information, the jury could have found a verdict convicting the defendant of an attempt to commit rape or of a simple assault and battery or even of a simple assault. It is true that under § 10,890 of the Compiled Laws of 1913, the jury would be authorized, in a case of this character, to find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the information, or of an attempt to commit such an offense; but it does not follow from this that the court is precluded from defining to the jury the elements of the crime with which the defendant is charged in the information. Nor does it follow that the court is precluded from characterizing the offense according to its legal designation. In the case at bar, there can be no doubt whatever that the offense was committed as charged; the age of neither the prosecuting witness nor the defendant was questioned, and a child was born. There is no dispute in the testimony bearing upon any of the elements of the offense. It is wholly a question of the identity of the person who committed the offense.
It is further contended that the court erred in instructing the jury that they might take into consideration the condition of the clothing of the prosecutrix, the complaint to the father and mother, the state’s attorney, and the sheriff. There was ample evidence in the record touching these matters, which went in without any objection, to warrant the giving of the instructions complained of. The court did not comment upon
It is urged upon this appeal that, insofar as evidence was admitted without objection being made, the trial court was remiss in its duty to safeguard the rights of the defendant; but a reading of the record convinces us that the trial judge was in no way remiss in his duty of seeing that the trial was properly conducted. On the contrary, the record shows that the trial judge interceded as far as proprieties would allow in an effort to clear up the question of the identity of the guilty person.
The defendant has had a fair trial, there is no error in the record, and the conviction is affirmed.