State v. Allison

• Decision Date: 26 January 1910
• Citation: 124 N.W. 747,24 S.D. 622
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. ISAAC ALLISON, Defendant and appellant.
• Court: South Dakota Supreme Court

24 S.D. 622, 124 N.W. 747 (1910)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v ISAAC ALLISON,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Davison County, SD

Hon. Frank B. Smith, Judge

Affirmed

Preston & Hamlett

Attorneys for appellant.

S.W. Clark, Atty. Gen.

Cloyd D. Sterling, Asst. Atty. Gen.

W. M. Herbert, State's Atty.

Attorneys for the state.

Opinion filed Jan. 26, 1910

WHITING, P. J.

Defendant and appellant was convicted in the trial court upon information charging him with an assault with intent to commit rape upon the person of a female under the age of 18 years. The defendant has appealed to this court from the said judgment of conviction, and from the order of the trial court denying a new trial.

The evidence received on behalf of the state was that of the girl whom defendant was accused of assaulting, and evidence of the sheriff and deputy sheriff relating to an alleged confession made in their hearing to the state's attorney of the county where the offense was alleged to have been committed. It appears the defendant was in the custody of the sheriff at the time of such alleged confession.

The appellant has assigned several alleged errors, which errors, for convenience in discussion, were grouped by counsel for appellant, and may be grouped by us, under four headings.

The first error assigned by the appellant is based upon the admission in evidence of testimony, given by the complaining witness, in relation to acts of the appellant toward such complaining witness, which occurred prior to the offense alleged in the information. This testimony, if believed, would tend to prove that a few days prior to the date of the alleged offense the appellant had solicited the complaining witness to allow him sexual intercourse with her, and had taken certain indecent liberties with her person. The state contends that, in this class of cases, evidence of prior conduct is admissible, where it would tend to show the intent with which defendant committed the acts which form the gist of the charge preferred against him. The state is certainly right in this position; this class of cases forming an exception to the general rule that upon a trial for an alleged offense the commission of another offense cannot be shown. State v. Trusty, 122 Iowa 82, 97 N.W. 989 State v. Carpenter, 124 Iowa 5, 98 N.W. 775; People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880, 58 Am.Rep. 530.

Before allowing the sheriff and his deputy to testify in relation to the alleged confession, the jury was excused, and the court, in the absence of such jury, received the testimony of the sheriff to show that no threats or inducements were made against or held out to the accused rendering his confession inadmissible. The defendant also testified before the court in the absence of the jury, and it was his claim that the sheriff came to him and told him that the state's attorney wanted to see him and that such state's attorney was going to question him about what he had been arrested for. The accused further claimed that the sheriff stated: "The best thing you can do is to tell the truth, and you might get out of it today." This is the only inducement which the defendant claimed was held out to him, and the sheriff flatly denies making such statement. The jury were then recalled, and, over the objection of the counsel for defendant, the sheriff and his deputy were allowed to testify in relation to the alleged confession. The defendant did not request that the evidence in support of foundation for admission of confessions be given before and submitted to the jury, and no error is claimed because the court did not submit the competency of such confession to the determination of the jury. This court has already held that the excusing of the jury while receiving the testimony to show the competency of a confession is the proper practice; State v. Vey, 21 S.D. 612, 114 N.W. 719. We believe, also that where ever the circumstances are such as to create a doubt or suspicion as to the competency of proof of confession, it is incumbent upon the state to offer its proof to show the competency, whether an objection has been made or not, and that this rule may well be applied wherever it appears that such confession was given to the officers of the court while the defendant was in custody. 3 Ency. of Evidence, 330; State v. Storms, 113 Iowa 385, 85 N.W. 610, 86 Am.St.Rep. 380; State v. Staley, 14 Minn. 105 (Gil. 75). If the evidence submitted to the court should be conflicting, leaving in the mind of the court any question as to the competency of such confession, then the question of such competency should be submitted to the jury, by recalling the witnesses and examining them on this point in the presence of the jury. It will be noticed from the above quotation, giving the statement of the defendant before the trial court, that all he claimed was said to him to render the confession incompetent was: "The best thing you can do is to tell the truth, and you might get out of it today." The rule is laid down in Ency. of Evidence, at page 308, that mere importunity and advice to tell the truth, whether guilty or innocent, does not render the confession incompetent, where it involves no element of inducement, hope, or fear which might tend to elicit the confession, and numerous authorities are cited in support of such proposition. In State v. Staley, supra, the defendant claimed that the sheriff made a statement which in its nature, if made, would hold forth to defendant the strongest of inducements to make the confession. The sheriff denied making this statement, but claimed as follows: "I told him if he was going to say anything he must say the truth. ... I...