| N.D. | May 8, 1917
Lead Opinion
This is an appeal from a judgment rendered against “the defendant in a criminal prosecution which is brought under’ the provisions of § 10,250 of the Compiled Laws of 1913. The information was as follows: “That heretofore, to wit, on or about the 15.th day of July in the year of our Lord one thousand nine hundred and fifteen .at the county of Traill, in said state of North Dakota, one E. A. Nelson, late of said county of Traill and state aforesaid, did commit the crime ■of wilfully and wrongfully committing an act which grossly injured the person of another and which was injurious to public morals, committed as follows; to wit:
“That at said time and place the said E. A. Nelson, being then and there a male person of mature years, did wilfully and unlawfully entice unto himself one Grace Irene Stipp, a female child of tender years, and •after having thus secured her unto himself, did then and there wilfully ■and wrongfully expose her, the said Grace Irene Stipp’s, private parts and lap and suck the same with his tongue and mouth, to the gross injury ,of the child, who was then and there too young and inexperienced to consent to such act or to understand the nature thereof, and to the gross injury of the public morals of said county.
“This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of North Dakota.”
The statute under which the action was brought reads as follows: “Section 10,250. Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.”
A demurrer was filed to the complaint and was overruled. In our opinion it should have been sustained. If guilty at all, the defendant was guilty of the crime of sodomy as defined by § 9615 of the’Compiled Laws of 1913. Section 10,250 (under which the prosecution was brought) is, by its terms, only applicable where “no other punishment
The judgment of the District Court is reversed and the cause is, remanded.
Concurrence Opinion
(concurring specially). This case presents a put-up job to squeeze some loot from a thrifty miser. It is another case of killing the hen that laid the golden egg, and the result is the same.
We have a court drama in four acts. As the story goes, at 3 o’clock one Sunday in July a young lassie, nearing her teens, went into the store of a miser, gave him five cents for candy, went into the back room where she saw some apples, and he went there too, set her standing on an old rickety chair, knelt down and commenced licking her person.. They spoke not a word during the ten minutes she was in the store-There was no kissing or caressing. She was not given even a peanut. She went out and ate her candy, then called on a playmate and told her story in four words, and, when night came, told her mother, a widow who did work for the wife of the miser. In this drama the lassie is the hero, the miser is the villain, the mamma is the widow in the background. The playmate and the mamma say she told the same story to them. The miser swears the story is wholly untrue; that it is a complete fabrication; that in July on Sunday afternoons his store was crowded with customers; that there were no apples in July. Of course.he was found guilty, and his sentence was nine.months and $500. He pays probably a thousand dollars for defense, rather than to pay a. few hundred dollars where it would have done the most good.
In such a case the desire of the jurors to be on the laughing side, and. to show a mock horror of things scandalous and incredible, has led to the conviction and ruin of many an innocent person. There is no-natural desire in man or in any of the lower animals to do any such licking. The conviction was on the mere word of the girl, against the-oath of .the defendant. I say it was on her word, because she was too-
On such evidence no jury would have thought of convicting a man-of an ordinary theft, but because the charge was incredible, ridiculous, and scandalous, the defendant was convicted and sentenced to nine months in jail and a fine of $500. The girl confessed that she was-told what to say, and she said it under manifest pressure and reluctance.
The cross-examination of defendant was highly improper, and it merits a severe rebuke. After defendant had been sworn and denied the charge in the most positive and circumstantial manner, the state’s, attorney asked him: Did you not do the same thing with this one and that one and several others? He asked some fourteen accusing questions for the manifest purpose of poisoning the mind of the jury, and by each accusing question the state’s attorney did in effect affirm that it was true. It is high time for this court to make it known that such a procedure will not be tolerated and that it is cause for disbarment. In the conduct of a case, no attorney has a right to make himself a witness by putting accusing or vexatious questions. Under such a procedure a man’s innocence is no protection. The veriest saint may be subject to blackmail by any party or parties who can safely use a little girl as the hero or scapegoat. Indeed, if the accused had been as pure as the angels above, it would have been better for him to have paid $1,000,. than to have taken the chance of such an ordeal and the expense of such a trial.
The prosecution is under this statute: Section 10,250: “Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the-public peace or health, or which openly outrages public decency, and is injurious to public morals, ... is guilty of a misdemeanor.”
The complaint is for an act which grossly injures the person of another, and not an act injurious to property or public peace, or public health, or public decency, or anything public. There is no averment or claim that the act in question was public. It is needless to review the manifest errors appearing of record. In a prosecution for an act which
The other judges conclude their decision by a dictum holding that, if there were any offense, it was an attempt to commit sodomy. Truly that is ridiculous. Men do not accomplish rape or sodomy with the "tongue. It has no penetrating force, and, under the statute, there must be “sexual penetration.” The tongue is never an instrument of .force or violence.