128 P. 543 | Mont. | 1912
delivered the opinion of the court.
On the 13th day of December, 1911, about 6:30 P. M., the defendant called at the home of the prosecuting witness, near Chinook, and asked her mother if he might stay all night. Permission being given, about 9 o’clock all retired. The father and mother of the prosecutrix occupied one room, the defendant another, and prosecutrix and her eight year old sister a third, all on the same floor. An hour or so later the mother went into her daughter’s room and found her and the defendant occupying the former’s bed. The defendant thereupon arose from the bed and sat upon its edge. The mother was obliged to call the daughter’s name three times before the latter an
At the close of the state’s ease the defendant withdrew his plea of “not guilty” and entered a plea of guilty. On the
In view of the showing made and the character of the state’s evidence, we think the court abused its discretion in refusing to grant the motion. The writer of this is of opinion that the state wholly failed to make out a case of rape and the information should be dismissed. No good purpose would be served by discussing or commenting upon the evidence. The Chief Justice is inclined to think the cause ought not to be finally disposed of upon this appeal from the judgment. Mr. Justice Holloway is of opinion the defendant should have simply the relief prayed, for.
The decision of the court is that the judgment be, and the saméis hereby, reversed and set aside, with directions to the district court to allow the defendant to withdraw his plea of guilty and enter a plea of not guilty.
Reversed.