176 N.W. 35 | S.D. | 1920
Appeal from a conviction for incest and from an order denying a new trial.
“Persons who, being within the degrees of consanguinity ■within which marriages are by. the laws of the state declared incestuous and void, intermarry with, each other, or commit adttltery or fornication with each other, are punishable by imprisonment in the state penitentiary not exceeding ten years.”
Section 38, C. C. (section 106, Rev. Code 1919), is as follows:
Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of
The information charged:
“That defendant did commit the crime of incest as follows: That the said Fred H. Morgan, on the 21st day of July, Á. D. 1918, at Mitchell, in the county of Davison and state of South' Dakota, did wilfully,' unlawfuly, and feloniously" have incestuous intercourse with one Bernice Morgan, and did then and' there live and cohabit as husband and w,ife with the said Bernice Morgan, she the said Bernice Morgan being then and there the daughter of Bert Morgan, and he,' the said Bert Morgan, and the said Fred H. Morgan being then and there brothers of the whole blood.”
Appellant says that the charge that they cohabited as husband and wife does not charge that they maintained sexual' relations. Appellant errs. Such is the ordinary meaning of the words “cohabited as husbánd and wife.” Burns v. Burns, 60 Ind. 259; State v. Spurling, 115 Da. 789, 40 South. 167; State v. Smith, 18 Ind. App. 179, 47 N. E. 685. Furthermore, the charge that appellant “did' have' incestuous intercourse” with the daughter of his brother stated a criminal offense. Hintz v. State, 58 Wis. 493, 17 N. W. 639.
"Over apt objection, testimony was admitted tending to show that the defendant had bought stolen property through a transaction not connected with the one being prosecuted for and occurring prior to the act upon which the indictment is based. One defense of its admission made by the state is that evidence of the purchase of other stolen brass is admissiblé to show the intend and the absence of mistake or accident; and the many cases cited for this proposition fully sustain the statement. But the question remains whether, since this is the only purpose for which such evidence is properly receivable, it may be adduced over objection when there is an admission of record that there was no accident or mistake, and that whatever was done was done intentionally and knowingly.”
The court then decided that it was error to receive that testimony.
But in this case the admissibility of the letters was not limited to the question of intent. They were admissible, not only to prove the matters covered by the admission, in open court', but as bearing upon the probability of the commission of the very act charged. In 14 R. C. L. 38, we find the following :
“According to the weight of authority, evidence of other acts of sexual intercourse or lascivious familiarity between the same parties is admissible as tending to show a tendency or disposition to do the thing complained of.”
This is particularly true where, as in -this case, the act of sexual intercourse charged was proved only by circumstantial evidence. The general rule as stated in 16 C'orp. Jur. 562, is as follows:
“Evidence of facts which in themselves are relevant to*523 the guilt of accused are not inadmissible because he admits, or offers to admit, ithat such facts are true. The right of the state to offer, and to have received, evidence which is relevant and material to the issue cannot be taken away by such offer or admission.”
We think the trial court did not err in applying the general rule, even though the letters did tend to prejudice the jury against appellant.
“By the statute of the state sexual intercourse 'between an uncle and niece is incest, no matter whether they are married or unmarried. There is some evidence that these parties were at least formally married in Colorado. Now the law of, Colorado is 'just the same as the law in the state of South 'Dakota. It makes marriage and! it makes sexual intercourse between an uncle and niece incestuous; in other words, a crime. So, if*524 they were married in 'Colorado, that would be no defense whatever to any sexual intercourse that they might have had here.”
The. appellant, excepted to that portion wherein “the court told the jury that the law of the state of Colorado was the same as the law of the state of South Dakota.” The prosecution had offered, in evidence section 1897 of a volume purporting to foe “Mill’s Annotated .‘Statutes of Colorado, 1912,” together with chapter 109 of a volume purporting to be the Laws of 1913 of the state of Colorado, which chapter declared, the above Annonated Statutes to be prima facie evidence of the law¡ of Colorado. The above section of the Colorado statutes, so far as the marriage between uncles and nieces is concerned, is exactly like our section 106, Rev. Code 1919. Appellant offered no contradictory evidence on the subject.
Appellant, while admitting that the volume of statutes was prime facie evidence of the law- of Colorado, yet contends that the question as to what was the law of 'Colorado: was a question of fact for the jury to determine, and that the trial court exceeded its province in giving the portion of the instruction excepted to.
■Section 528-, C. C. P. • (section 2718, Rev." Code 1919), provides: " '
“Printed copies in volumes of statutes, Codes, or other written law!, enacted by any other state. * * * purporting or proved to have been published by the authority thereof, * * * shall be admitted by the courts and officers of this state on all occasions, as presumptive evidence of such laws.”
Section 500, C. Cr. P. (section 5044, Rev. Code 1919), requires this court on appeal in criminal cases to give judgment
No substantial right of appellant having been invaded in this case, the judgment and order appealed from) are affirmed.