State v. Bailly

• Decision Date: 26 July 1912
• Citation: 137 N.W. 352,29 S.D. 588
• Parties: STATE v. BAILLY.
• Court: South Dakota Supreme Court

137 N.W. 352

29 S.D. 588

STATE v. BAILLY.

Supreme Court of South Dakota

July 26, 1912

Appeal from Circuit Court, Roberts County; Alva E. Taylor, Judge.

Charles E. Bailly was convicted of statutory rape, and he appeals. Affirmed.

T. J McElligott, J. O. Andrews, and Howard Babcock, for appellant.

Royal C. Johnson, Atty. Gen., and Thad L. Fuller and Frank R McKenna, for the State.

WHITING J.

Defendant was convicted of the crime of rape, alleged to have been committed upon the person of a girl under the age of consent. From the judgment of conviction and the order denying a new trial, he has appealed to this court and specifies numerous errors, most of which relate to the rulings of the court upon the admission of evidence. The rulings of the trial court upon the admission of evidence were extremely fair to defendant, and we find few assignments of error meriting consideration in this opinion.

There was received in evidence the testimony of a Catholic priest as to the contents of a parish record of his church, which record was in his charge as pastor of such church and by him produced in court. He testified that such record was a record of the baptisms of the children of his parish. He was asked what else appeared on it. This was objected to as not the best evidence, objection overruled and exception taken. He answered that it showed date of baptism, date of birth parents of child baptised, and witnesses to the fact. He then, without objection, and without the introduction of the record in evidence, was allowed to testify that the record was in Latin, and to translate the contents of the same. It is clear that the witness' statement to the effect that the record showed date of birth was absolutely harmless to defendant. A very different question would be presented under an objection raising the question as to the competency of such a record to prove date of birth.

Appellant contends that the evidence received was insufficient to warrant the jury in finding the fact of sexual penetration which finding the trial court rightfully charged was essential to justify a verdict of guilty. The complaining witness testified that defendant had "intercourse" with her, but did not go into detail in regard to the act of copulation; and it is the contention of appellant that the jury had no right to find that there was sexual penetration. In support of such contention, appellant cites a large number of authorities, all of which we have examined. The only one of said authorities that in the remotest degree touches upon the question before us is the case of People v. Howard, 143 Cal. 316, 76 P. 1116. In that case, as in case at bar, the complaining witness testified that defendant had "intercourse" with her; and, while the court, in that case, clearly held that proof of "sexual intercourse" would be sufficient to establish penetration (the court saying, "The prosecution must have proven sexual intercourse, whichincludes and means sexual penetration"), and also held that the penetration might be inferred by the jury from other facts and circumstances proven, yet the court held that, owing to the divers meanings given the word "intercourse" in accordance with its various uses, from the mere statement that defendant had "intercourse" with complaining witness at a certain time and place, the state did "not succeed in proving sexual intercourse." We think that regardless of the various meanings given by lexicographers to the word "intercourse," when, as in the case at bar, the prosecuting witness testified that, at the solicitation of defendant, she, with him, entered a building after dusk, that he took her upon his lap and kissed her, that he told her he wanted to get next to her, that she objected, stating she was unwell, and that "we hadn't ought to be doing that all the time," to which he replied, "Oh, that doesn't make any difference," that he put his coat on the floor and her on top of it, and that he had intercourse with her, the jury was fully justified in finding that the comradeship between these parties was not of a platonic nature; that their "intercourse" was not the mere exchange of mental thoughts and impulses, nor yet the spiritual communion of two souls that beat as one, but rather that such "intercourse" was physical in its nature, and one resulting from...