154 N.W. 808 | S.D. | 1915
Appellant, having been convicted of a felony, appealed from the judgment of conviction and from an order denying a new trial. But two matters are presented for our consideration: (1) The overruling of a motion in arrest of judgment; (2) the sufficiency of the evidence to sustain the verdict of guilty.
“The allegation as to the day on which the offense was committed is immaterial, and did not affect the sufficiency of the indictment. The statutes provide that- the indictment must contain ‘a statement of the acts constituting the offense, -in ordinary and concise language, and in such a manner as to enable a person of common understanding to know wthat is intended’ (our section 221, C. Crim. Proce.) ; that it is sufficient if it can be understood . therefrom: ‘First, that it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of the court is not accurately stated; second, that the offense was - committed within the jurisdiction of the court, and at .some time prior to the time of finding the indictment; third, that the*298 act or omission, charged -as the offense, -is stated with such- a degree of certainty as to enable the court to pronounce judgment, on conviction, according -to the rights of the case’ (our section 229, C. 'Crim. P’roc.) — and further provide that ‘no indictment is insufficient, nor can the trial judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of ■the substantial rights of ¡the defendant on the merits’ (our sections 230, 500, C. Crim. Proc.). -.Sand. & PL Dig. sections 2090, 2075, 2076. According to these provisions of the statute, air allegation in the indictment as to the day upon which -the offense charged was committed -cannot affect it, if it can be understood therefrom by a person of common understanding that the grand jury intended' to charge that the offense was committed ‘at some time prior to the time of finding the indictment.’ The only necessity for such allegations is to show that the offense was committed before the indictment, unless time -is a material ingredient of the offense. Except as stated, it is not necessary to- a conviction that the state prove that tire offense was committed on the day alleged, but it is sufficient, as to time, to show that it was committed on any day before the indictment was found, and within the time prescribed by the statutes of limitations.” People v. Dinsmore, 102 Cal. 381, 36 Pac. 661; Williams v. Com. (Ky.) 18 S. W. 1024.
“Whenever the appellant shall seek to rely upon an assignment, to the effect that -the evidence was insufficient .to support the verdict, finding or other decision, lie shall -cause it to affirmatively appear that his brief contains such a statement of all the material evidence received -upon the trial.
Bu-t, inasmuch as appellant might even yet seek to amend his brief by stating therein that it does contain all the material evidence, and, upon the brief as amended, to have the -sufficiency of the evidence considered, we feel that, owing to the enormity of the offense and the punishment imposed, we are justified in. considering the evidence that is now before us and in determining whether such -an amendment would -avail appellant anything. Certainly, in view of the nature of the offense -and the -punishment inflicted, this court would be remiss in its duty if it did not suggest, yes, even demand,-that the brief be amended to show whether or not such evidence was all the material evidence, if, after reviewing the evidence no-w before us, we should be of the opinion that it did not support the- verdict. The defendant was the stepfather of the complaining witness, a girl of tender years. Defendant wa-s charged with the -crime of rape -alleged to- have been committed upon the person- of such child. He was -convicted and sentenced to serve a .term of 20 years in the state’s .prison. The story of the -complaining witness was most revolting in its details, setting forth many -commissions of the offense charged, and that they had -continued over a long period of time. The evidence of such witness stood absolutely uncorroborated. While, appellant concedes that, under the established law of this state, a defendant, charged with the crime of rape, may be -convicted' upon the- uncorroborated testimony of the injured female, yet he insists .that such a conviction should only be sustained w-hen .the story told by such witness is, upon its face, reasonable, and, when -the motives behind the -prosecution are free of suspicion. We do not feel called upon to- detail the evidence before us. It certainly could serve no good purpose. Appellant contends that the -evidence, relating to- the physical -position of the -par-ties at the time some o-f the offenses -were alleged to have been -committed, presents an unatural, if not an -impossible, situation for -the -consummation of the offense -charged. While this
It appears that the complaining witness never disclosed the wrong that had been done her until after the time when her mother had commenced an action for divorce against defendant. Appellant contends that this of itself is suspicious, and would have us infer that this charge against defendant was wrongfully preferred as a result of the family trouble which culminated in the divorce proceedings. The complaining witness gave a perfectly reasonable explanation of her reasons for not revealing her condition and the cause thereof until the time she did reveal same. Moreover, we are of the opinion that, if this prosecution had been malicious and without justification in fact — if, as seems to' be claimed by appellant, this prosecution is the result of a conspiracy between this complaining witness and her mother — there would have been no lack of corroborative evidence before the trial court. Certainly any one who would conspire to bring a false charge, as serious as the one in this case, against any person would never hestitate to supply corroborative evidence when (as where the offense was of the nature charged in this action and where it was claimed, as here, that such offense had been repeated time and again in and about the home of complaining witness) it would be exceedingly easy to manufacture corroborative evidence sufficient to fully support the story told by the complaining witness.
It would avail appellant nothing if his brief did set forth that it contained a statement of all the material evidence received upon