State v. Albers
| Decision Date | 04 May 1928 |
| Docket Number | A-6540. [*] |
| Citation | 219 N.W. 263,52 S.D. 582 |
| Parties | STATE v. ALBERS. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lincoln County; Herbert B. Rudolph Judge.
John Albers was convicted of statutory rape, and he appeals. Affirmed.
Mundt & Mundt, of Sioux Falls, for appellant.
Buell F. Jones, Atty. Gen., and Bernard A. Brown, Asst. Atty. Gen for the State.
The appellant was convicted of statutory rape, and he appeals from the judgment and from the order denying his motion for a new trial.
The appellant's brief sets forth very numerous assignments of error, but all these may be considered as constituting seven groups, as follows:
First. Alleged error of the trial court in permitting the state's attorney to indorse names of additional witnesses on the information.
Second. Failure of the court to admonish the jury not to consider certain statements made in the presence of the jury.
Third. Alleged errors in the admission and rejection of evidence.
Fourth. Refusal of the trial court to give certain instructions.
Fifth. Alleged misconduct of the jury.
Sixth. Alleged misconduct of the state's attorney.
Seventh. Insufficiency of the evidence to sustain the verdict.
As to the indorsement of witnesses' names, the record shows that before the jury was selected the state's attorney asked permission to indorse upon the information the names of three additional witnesses, stating that these witnesses were unknown to him at the time of filing information. When the request was made, the defendant's counsel objected on the ground that the defendant was not prepared to meet the issues raised by the testimony of these additional witnesses and could not defend without being granted a continuance, if these witnesses were allowed to testify.
At that time there was nothing before the court to indicate what the testimony of these additional witnesses would be, nor was any showing as to that made by the defendant. When these witnesses testified, it became apparent that their evidence merely corroborated that of other witnesses whose names were indorsed before the information was filed. When the nature of their evidence was disclosed, the defendant made no showing of surprise, nor did he take any steps toward the securing of a continuance. In the absence of such procedure, it does not appear that the defendant was in any way prejudiced by permitting these witnesses to testify, State v Cherrington, 34 S.D. 562, 149 N.W. 421; State v. Fulwider, 28 S.D. 622, 134 N.W. 807; State v. Matejousky, 22 S.D. 30, 115 N.W. 96; State v. King, 9 S. D. 628, 70 N.W. 1046.
As to the failure to admonish the jury, the record shows that when the state's attorney began his examination of the prosecutrix as a witness for the state, an attorney, not engaged in the trial of this case, rose and stated to the court that he was acting for this witness and her sister in another matter in which they were defendants, and that he desired to ask leave to instruct his clients as to their right to refuse to answer any questions as to matters that might tend to incriminate them. Thereupon the counsel for defendant, Albers, objected to the consideration of the matter in the presence of the jury. The trial court then excused the jury from the courtroom, and in the absence of the jury the attorney making the request advised his clients as to their right to refuse to answer.
It is difficult to perceive what further the trial court could have done in the matter. Neither the trial court nor the state's attorney was responsible for the occurrence. Defendant's counsel and another attorney, interested like defendant's counsel in preventing the eliciting of evidence by the state, were the only ones to bring the matter to such attention as the jury may have given it. The orderly administration of justice cannot permit the staging of such an episode to disqualify the trial jury and all other members of the jury panel who might chance to be present. Nor is it apparent that any statement which the trial court might make to the jury would in any way remove any prejudice that might result from the discussion. The record shows that neither the prosecutrix nor her sister claimed the privilege of refusing to answer, so the jury could not feel that anything had been kept from them because of the matter mentioned in their presence. Threrefore no prejudice is apparent.
As to the alleged errors in the rulings on evidence, there are two points worthy of consideration. The state's attorney, in his examination of the prosecutrix, resorted to the use of leading questions. The record shows that this witness was very young, had little educational training, and, from the nature of the matters inquired into, was naturally a reluctant and embarrassed witness. Under such circumstances, it was within the discretion of the trial court to allow leading questions to be used upon the direct examination. State v. Cambron, 20 S.D. 282, 105 N.W. 241; State v. Waters, 132 Iowa, 481, 109 N.W. 1013; Smits v. State, 145 Wis. 601, 130 N.W. 525.
Certain witnesses were allowed to testify as to statements in the nature of admissions being made by the defendant. Some of these statements were alleged to have been made at the time defendant was before the magistrate for preliminary examination. The defendant was then under arrest, but there is no evidence that any statements made by him were elicited by threats or promises, and there is evidence that no threats or promises were made. The evidence of the examining magistrate, the attorney representing the state, and of others present in the magistrate's office shows that the statements were not in response to any questions put to defendant as a witness, for preliminary examination was waived by him. The magistrate, the prosecutor, and others testified that the defendant was advised that he did not need to make any statements, and that any statements which he did make might be used against him. The evidence was sufficient to justify the trial court in admitting evidence of these admissions, as admissions voluntarily made.
As to the refusal of the trial court to give certain proposed instructions, of the eleven proposed one is an instruction that the jury must return a verdict of not guilty, because there was no evidence that the defendant was guilty of the crime charged. This is the same question now raised under the assignment of the insufficiency of the evidence.
Three of the proposed instructions are based upon the theory that failure of the prosecutrix to make complaint may be...
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