State v. Apley

• Decision Date: 19 May 1913
• Parties: STATE v. APLEY.
• Court: North Dakota Supreme Court

25 N.D. 298

141 N.W. 740

STATE

v.APLEY.

Supreme Court of North Dakota.

April 14, 1913.

Rehearing Denied May 19, 1913.

Syllabus by the Court.

From a conviction for statutory rape defendant appeals. Held: It was error to exclude cross-examination tending to show that the prosecutrix, about a year before the alleged rape upon her by defendant, had been an inmate of a house of prostitution for a period of three weeks.

Such testimony, when elicited under cross-examination of prosecutrix, was admissible as proof of unchastity and immoral character of the prosecutrix as bearing directly upon her credibility, even though she was under the age of consent, and her consent to the commission of the acts charged as constituting the offense was immaterial.

It was proper for the state to show, by the testimony of an examining physician, the physical condition of the prosecutrix ten days or two weeks after the alleged commission of the crime; but it was error to exclude the testimonyoffered by the defendant tending to explain or refute the apparent corroborative testimony of such physician. The rulings complained of left the physician's testimony unexplained and tending to corroborate the prosecutrix without affording defendant the offered defense thereto, or his explanation thereof, as was sought to be elicited by cross-examination of the prosecutrix herself.

Defendant should have been permitted to fully examine a state's witness concerning whether said witness had made certain statements to the magistrate from whom she, as complainant, had procured a warrant to issue for the arrest of the prosecutrix for alleged grand larceny two days before defendant's arrest on this charge, when, during the trial of this case, she had testified that such warrant had been procured merely that prosecutrix might be taken into custody so that thereafter prosecutrix could with safety institute this prosecution for rape against defendant. The testimony disclosed by reasonable inference that the prosecutrix may have been actuated by bad faith in instituting these proceedings, and full cross-examination should have been allowed of the state's witness concerning such arrest of the prosecutrix so caused under alleged prearrangement with the witness testifying; and the exclusion of the cross-examination offered was error.

The crime, if committed, was done while the wife and other children of defendant were temporarily absent on a visit. The state offered testimony showing opportunity, and from which the inference might be drawn that defendant had kept the prosecutrix at home to prostitute her; and such was the state's theory of why she did not leave with the wife and other children, as it had been previously arranged she should do. The wife was permitted to testify that she did not take prosecutrix with her because “she was afraid to,” but was not permitted to relate the specific reasons for her fears and reasons why the prosecutrix did not accompany her on the visit. Defendant sought to show that the reason for such fears was because of information obtained shortly before, from the prosecutrix and others, tending to establish her immorality and unchastity generally, and causing the belief in the defendant and wife that prosecutrix might become ungovernable and troublesome in such respect, if so taken, which testimony was excluded. This evidence offered should have been received, and defendant should also have been permitted to testify to his explanation of how prosecutrix came to remain at home with him.

Upon cross-examination defendant was examined concerning the death of his first wife, who had died more than 10 years before; and, from the matters so brought out, the jury may have concluded that her death may have been due in part to his refusal to furnish her with a doctor during childbirth. This and much other irrelevant testimony so elicited during his cross-examination may have been prejudicial.

Additional Syllabus by Editorial Staff.

In a prosecution for statutory rape, testimony concerning the facts and details of the complaint made to the witness by prosecutrix on the day after the crime, and of the then apparent condition of prosecutrix, was properly admitted.

Appeal from District Court, Stutsman County; Coffey, Judge.

Emmet F. Apley was convicted of statutory rape, and appeals. Reversed.

Burke, J., dissenting.

W. S. Lauder, of Wahpeton, and John Knauf, of Jamestown, for appellant. Andrew Miller, Atty. Gen., Geo. M. McKenna, State's Atty., of Napoleon (Geo. W. Thorpe and Russell D. Chase, both of Jamestown, of counsel), for the State.

GOSS, J.

Criminal information was filed in the district court of Logan county charging defendant, Emmet F. Apley, with the crime of rape, alleged to have been committed on or about July 4, 1911, upon the person of one Lillian Apley, a child of defendant, and under the age of 16 years. Upon defendant's plea of not guilty, a trial was had in said county resulting in a disagreement of the jury. Subsequently, on the state's application, a change of venue was taken to Stutsman county, where a trial resulted in a verdict of guilty. Thereupon defendant was sentenced to 14 years' imprisonment. He has appealed upon error assigned in the admission and rejection of testimony.

An outline of the facts is necessary to an understanding of the case. The defendant was at the time about 48 years of age; the prosecutrix, his daughter, not quite 15. Defendant had been twice married, his first wife having died more than 10 years ago. He had four children by each wife. Shortly after the death of his first wife, his three children, one having died, were placed in an orphans' home in Minnesota. From there prosecutrix was taken, when an infant, by others, and when about 7 years old her foster parents took her to Portland, Or. She remained in Oregon and Washington, with her whereabouts unknown to the defendant, until September, 1910, and during which time she had never seen her father. In August of that year she was at Walla Walla, Wash., and there came into the custody of a police matron. Persons interested then notified her father of the fact, and some details of the conduct causing her detention. From there she returned to Portland, Or., where she was placed in charge of the juvenile court, from which she was committed to a so-called “House of Detention.” About a month after the notice was received of her whereabouts at Walla Walla, defendant forwarded $30 to pay Lillian's railroad fare back to his home in Logan county, but before the receipt of the money the girl had returned to Portland. The money was returned. In June, 1911, following, after correspondence with officials of the Salvation Army and on their advice, defendant went to Portland and found his girl in the juvenile court at that place, which court committed her to his charge. He returned with her to his home in this state, arriving here on Thursday, June 22d; Lillian then first meeting defendant's second wife and the four children by his second marriage.

Defendant had, in June, 1911, shortly before going to Portland, sold his homestead and had preparations made to move to Canada. Lillian's two full brothers, Jesse and Frank, had been committed with her to the orphans' home in Minnesota years before. On August 10, 1910, Jesse, then about 16 years old, returned to defendant's home, but left it about the 1st of January, 1911. Before Lillian returned arrangements had been made for Mrs. Apley to take her four children and visit her people in Minnesota before the family removed to Canada. Defendant was to remain and perfect final arrangements for the family's removal. At first Lillian was to accompany Mrs. Apley on this visit but, pursuant to later arrangements between the defendant and his wife, she remained behind. Mrs. Apley and the children left on this visit June 29, 1911, and remained away about a week, during which time it is charged defendant carnally knew his daughter repeatedly between June 30th and July 5th. On July 5th defendant left his home for Napoleon, leaving the daughter at home, whereupon she went to a neighbor, one Miss Sullivan, made complaint of her father's treatment of her, and on departure took from Miss Sullivan a check for $300 and some jewelry. Miss Sullivan signed and swore to a criminal complaint, charging Lillian with the theft of this personal property, resulting in the issuance of a warrant, and Lillian's arrest the following day. The state alleges that this arrest was in fact a mock proceeding, prearranged between Lillian and Miss Sullivan, for the purpose of getting Lillian into the custody of the authorities that she might then with safety to herself lay complaint against her father, as she did, with the dismissal of the proceedings against herself following. Defendant denies all criminality, alleging that his daughter was wayward, headstrong, and hard to manage, and so accounting for his severely punishing her at this time while she was at his home alone with him. He also testified that the reason why she did not accompany his wife on the visit was because of certain conduct and statements made by her to the wife, and the knowledge had by both him and the wife of the daughter's conduct at Walla Walla and Portland, from which both decided not to take her with the other children on this visit. The alleged statements of Lillian and her purported conduct, causing her to be left at home, were offered on trial and excluded, as was the testimony of Mrs. Apley as to grounds for such reason offered for not taking the girl with her.

During her cross-examination, as a part of the state's case, prosecutrix had testified in detail to alleged conduct of the defendant toward her, tending to establish that on June 29th he had brutally maltreated her and related to her previous acts of abuse by him upon her brother Jesse, and that by his general conduct toward her he had so terrorized his daughter as to cause her, through fear of...