112 N.W. 60 | N.D. | 1907
Defendant was convicted in the district court of Stutsman county on November 1, 1905, of the crime of rape in the first degree, and from a judgment sentencing him to confinement in the penitentiary for the term of 10 years he has appealed to this court, alleging numerous errors in the rulings of the trial court, and also alleging insufficiency of the evidence to sustain the verdict.
The first three assignments call in question the correctness of the rulings of the trial court in denying defendant’s challenges for actual bias of the jurors Corwin, Orlady and Thompson. It is contended, and we think such contention well founded, that, if these rulings were erroneous, they were manifestly prejudicial, as defendant was required to exhaust his peremptory challenges in order to exclude these jurors from the case, and hence was deprived of exercising challenges upon other jurors claimed to have been undesirable. These jurors on their voir dire stated in substance -that they had read the newspapers purporting to give the facts involved in the case, and had heard the case discussed by others more or less, and had heard opinions expressed as to the guilt or innocence of the defendant, and that from what they 'had heard and read they had formed opinions which it would take evidence to change. On being examined further it developed that the -opinions which they entertained were based solely upon newspaper articles and current gossip, and that they had no clear anddistinct recollection of what they had read or heard, did not know who the witnesses were, and that, if accepted and sworn as jurors, they could and would disregard the opinions •or impressions they had formed, and try the case according to the evidence and the law, and that they understood it would be their duty so to do. From a careful examination of their testimony we
Appellant’s fourth assignment of error, relating to the instructions to the jury, was expressly waived at the oral argument, and hence will not be noticed.
The next assignment relates to the competency as a witness of Lena Kuetbach. As before stated, she was only about eight years of age, and had been afforded but little, if any, school advantages. She was examined at great length, both by counsel and the court, with- reference to her general knowledge, and such examination disclosed a somewhat less degree of intelligence than the ordinary child of her age; but, when her lack of advantages are considered, we are unable to say that she is not at least up to the average child of her age intellectually. She made intelligent answers to practically all of the many questions asked her -by the -court and counsel, and while she disclosed gross ignorance as -to some things which a child of her age, but with better advantages, ordinarily is informed regarding, it appears that she quite fully understood and comprehended the import of the questions asked her, and that she as a witness was bound to tell the -truth in regard to the facts of the case, and that she would be subjected to punishment for not so doing. Counsel for appellant contend that her preliminary examination before she was sworn, as well as her testimony as a whole after she was sworn, shows such a low degree of intelligence and lack of mental development and -training, even for a child of her tender years, that as a matter of law she was incompetent as a witness; and they cite
The correct rule, and the one adopted by the great weight of modern authorities, is that there is no certain age at which the dividing line between competency and incompetency may be drawn. Intelligence, rather than age, should guide the court in determining the competency of the witness; and the trial court, in the exercise of a sound discretion, after an examination of the witness will determine whether the child possesses sufficient intelligence to comprehend the obligation of an oath. See 3 Jones on Ev. section 738, 739; State v. Juneau, 88 Wis. 180, 59 N. W. 580, 24 L. R. A. 857, 43 Am. St. Rep. 877; State v. Reddington, 64 N. W. 707, 7 S. D. 368; Wheeler v. U. S., 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244; State v. Levy, 23 Minn. 108, 23 Am. Rep. 678; 1 Wigmore on Ev. sections 505-507, inclusive. These authorities also hold that the decision of the trial judge as to the competency of the witness will not be disturbed, except for a clear abuse of discretion. Mr. Justice Brewer, in Wheeler v. U. S., said: “The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his- understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous.” See, in addition to the above, People v. Craig, 111 Cal. 469, 44 Pac. 186; People v. Baldwin, 117 Cal. 244, 49 Pac. 186; People v. Daily, 135 Cal. 104, 67 Pac. 16; People v. Swist, 136 Cal. 520, 69 Pac. 223; State v. King, 117 Iowa 484, 91 N. W. 768; Com. v. Robinson, 165 Mass. 426, 43 N. E. 121; People v. Walker, 113 Mich. 367, 71 N. W. 641; Uthermohlen v. Boggs R. M. & M. Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884. In the case last cited the rule is stated thus: “But the true rule is, where the trial court has excluded or admitted a witness in cases of infancy, that there can be no reversal, except in a very palpable, unquestionable case of error, amounting to an abuse of discretion. The cases must be very rare in which there can be a re
It is next insisted that the evidence was insufficient to justify the verdict. Appellant contends that there is no proof of penetration, except the testimony of the prosecutrix, and he insists that her testimony was conclusively proven to be untrue 'by the medical testimony in the case to the effect that the physical condition of the' child, as disclosed by an examination afterwards, demonstrated beyond cavil that complete penetration could not have been effected, for the reason that the child’s genitals were not lacerated, etc. Conceding this to be true, it by no'means follows that there was not sufficient evidence from which the jury was fully warranted in finding that there was, at least, slight penetration, which, under the law, was all that was essential to constitute this element of the offense. It would serve no useful purpose to review at length all the testimony relating to this feature of the case. Suffice it to say that, after eliminating from our consideration this portion of the child’s testimony, we are clearly convinced that the remainder of her testimony, considered in connection with the other evidence in the record, was amply sufficient from which the jury might find that there was penetration, within the meaning of the statute (section 8892, Rev. Codes 1905).
Appellant’s seventh assignment of error is predicated upon the ruling of the court in permitting the mother of the child to testify as to statements made to her by such child. The testimony complained of related to statements made by Lena to her mother on June 16th, being three days after the offense was committed, in which she told her mother, in effect, that defendant had taken indecent liberties with her person. These statements were merely hearsay, and were incompetent, therefore, in chief, to prove the commission of the offense unless they come within some exception to the general rule as to hearsay testimony. The courts hold quite generally, however, that it is proper to prove that the prosecutrix, recently after the commission of the offense, made complaint to others as to the commission of such offense, basing their decision upon the ground that such testimony is admissible as being in corroboration of her testimony in court. Other courts base their decisions, sustaining the ad
Appellant’s eighth assignment of error challenges the correctness of the rulings of the trial court in permitting the witness Dr. Todd to testify that defendant was afflicted with a certain loathsome disease and in refusing to strike out such testimony. It appears that this witness had treated defendant for a venereal disease during the winter and spring of 1905. Counsel for appellant most vigorously insist that these rulings were erroneous. The testimony objected to related to a conversation had between the witness and the state’s attorney, Mr. Thorp, and the defendant, while these three persons were riding together in June, 1905, during which conversation Mr. Thorp asked defendant certain questions relative to his having a certain venereal disease, and, among other questions, he asked him what was the matter with him, to which he replied: “There is Dr. Todd, who treated me. He can tell you.” Thereupon the doctor said: “Pie had a hard chancre.” It is contended that it was error to permit the doctor to narrate this conversation, as such ruling vio
The only remaining assignments relate to the rulings of the district court in permitting the witness Dr. Vidal to testify in rebuttal to his examination of the child at the time of the trial, and to state her condition at that time, and also in permitting him to give his professional opinion, based upon such examination and in response to hypothetical questions as to certain matters claimed to be proper only in making the state’s case in chief. This witness was called by the state before defendant had finally rested his case, but with the latter’s consent, for the purpose of accommodating such witness, who could not be present on the following day. We have examined the testimony of this witness carefully, and are of the opinion that the same was proper rebuttal evidence. The whole scope of this testimony, as we construe the same, merely tended to rebut the medical testimony of defendant’s witnesses to the effect that the girl was suffering from eczema, instead of syphilis, and also to offset
Finding no error in the record, the judgment appealed from is affirmed.