168 N.W. 749 | S.D. | 1918
Defendant was convicted, of rape, and, appeals from, the judgment and an -order refusing a new trial.
The information filed in -circuit court charged ith-at the crime w-as -committed on February 20, 1914. In his opening statement to the jury the state’s attorney stated that “the state expects to show that along in February, 1914, * * * -defendant had intercourse with her [the complaining witness-] a-t — -in a coal -shed! at the schoolhouse; * * *” and evidence supporting s-uch statement was introduced upon the trial. The state, over objection, was permitted to introduce evidence tending -t-o pro-ve a separate and, distinct act of sexual intercourse, testified, by complaining witness, as occurring two months after the act occurring in the coal -shed. It was the claim of .the state -that it -had1 the right to prove these two- separate, distinct acts, either one as corroborative of the other, and, furthermore, that it -co-uld not be required tci elect as to which act it w-oul'd rely upon for conviction. The defense took the position that the state was bo-un-d- to- rely on th-e -coalhouse act as the basis- for conviction; and that proof, of no act occurring subsequent to the act relied upon- co-uld be received as corroborative evidence. The trial court agreed with the -state, and, by its instructions, -authorized- the jury to convict if they were able to- reach a unanimous verdict a-s to either -aot. The above facts present the most important question -before us.
“But after the evidence had been admitted for this purpose, the prosecuting attorney changed bis ground, and claimed that the jury might select any one of the acts on which evidence had been given as the ground of their verdict. * * * The prosecution claimed that any act of intercourse proved was the offense charged. The court gives them nioi information on the subject. It was a question of law, important for the government of .the jury. He leaves it to them to ascertain. Will the jury be likely to fin'di it out if the court cannot? But the third' paragraph of the charge clearly adopte tire theory of the prosecuting attorney, and holds- -that any tone of the several acts of sexual intercourse proved, or attempted to be proved, may be selected) by the jury as the ‘offense charged,’ and that they may find the defendant guilty of the one thus selected1; as he tells them1, ’they may find him guilty if, from the evidence, they believe that -the act was not committed at the Howard House, but was -Committed at some other place in the city of Detroit, within the period of six years prior to ithe time of filing this information.’ Now, there was no dispute whether that particular act of intercourse stated to have occurred at the Howard House, occurred there or at some -other place in the city, nor 'whether it occurred at a period materially different from that stated by the witness; and neither the jury nor this court could -possibly derive any other understanding from this charge than that the jury were at liberty to select among the numerous acts of intercourse in the city of Detroit
See, also, State v. Rice (N. D.) 168 N. W. 369, for discussion of this question and a -review of People v. Jenness, supra.
Thus- the real -question always- is: What particular alleged-criminal act or transaction did the prosecutor have ini mind when he drew his information'? If that is revealed by the record upon a preliminary hearing, by the wording of the information itself, by an ¡opening statement o-f the prosecutor, or by the evidence, the court must see to it that the defendant is convicted of that particular act or transaction or else acquitted. If the particular act or transaction relied upon is not .made clear to the -court through lone or more of the means1 ¡above indicated), the court ¡should1 then require the ¡state, and not the jury, to elect as to which alleged act or -transaction the verdict shall be based upoln.
“An adulterous disposition existing in two¡ persons ¡towards each other is commonly of gradual development; it must have some duration, and1 does not suddenly subside. When once shown to, exist, a strong inference arises that it has had ¡and will have continuance, the duration and extent of which may be usually mea-’ sured by the power which it exercises over the conduct of the parties. It is this character of permanency which justifies the inference of its existence, at any particular point of ¡time, from facts illustrating the preceding or subsequent relations of the parties. The rule is that a condition' once proved is presumed to have been produced’ by causes operating in, the usual way, and to¡ have continuance till /the contrary be shown. The limit, practically, to the evidence under consideration is that it must be sufficiency significant in character, and' sufficiently near in point of time, to have a tendency ‘to lead the guarded discretion of a reasonable and just man’ to a-belief in the existence of this- important element in the fact to be proved, If -too- remote or insignificant, it will be xejected, in the discretion, of the jxxdge who tries the case.”
.To1 the same effect see ¡the ¡discussion .in 1 Wigniiore on. Evidence, §§ 398-402. We cite Ibuit a few¡ lof the many ¡cases wherein the courts have sustained the rule announced by Bishop and Wig-more. The cases cited are xieaxdy all, like the one before us, ¡cases of rape charged to ¡have beexx committed .on a girl under age of consent, but ¡where- the girl actually consented. State v. Stone, 74 Kan. 189, 85 Pac. 808; State v. Brown, 85 Kan. 418, 116 Pac. 508; Morris v. State, 9 Okl. Cd. 241, 131 Pac. 731; People v. Koller, 142 Cal. 621, 76 Pac. 500; Sykes v. State, 112 Tenn. 575, 82 S. W. 185, 105 Am. St. Rep. 972; Levy v. Ter., 13 Ariz. 425, 115 Pac. 415; State v. Robertson, 121 N. C. 551, 28 S. E. 59; State v. More, 115 Iowa, 178, 88 N. W. 322; State v. Roby, 128 Minn. 187, 150 N. W. 793, Ann. Cas. 1915D, 360.
The judgment anidi order appealed from' are reversed.