State v. Ballard
| Decision Date | 30 June 1948 |
| Docket Number | 8980. |
| Citation | 33 N.W.2d 339,72 S.D. 293 |
| Parties | STATE v. BALLARD. |
| Court | South Dakota Supreme Court |
Rehearing Denied Aug. 11, 1948.
Sigurd Anderson, Atty. Gen., and E. D. Barron Asst. Atty. Gen., Roland Cutler, State's Atty., Jerauld County, of Westington Springs, for plaintiff and respondent.
William Ochsner, of Wessington Springs, for defendant and appellant.
The defendant was convicted of rape in the second degree and has appealed to this court. Defendant while residing at Huron where he was employed as a cream station superintendent and traveling over a territory in eastern South Dakota was employed by the First Baptist Church in Wessington Springs as a lay pastor. For a time defendant continued to reside in Huron and made weekly trips to Wessington Springs to serve the church. In January 1944 defendant with his family, which consisted of his wife and three children, moved to Wessington Springs and occupied a house that is described in the evidence as the Cutler house. This was a five-room house with two bedrooms upstairs. The prosecuting witness, Opal Bucholz, attended the Baptist Church and became acquainted with the defendant. Shortly after defendant and his family moved to Wessington Springs Opal went to the Ballard home to room while attending high school. She became 16 years of age on February 8, 1944. Opal testified that shortly after going to the Ballard home defendant commenced reading the Bible to her and became very personal and told her 'it was O.K. to have free love being he was the pastor.' She further testified to numerous instances of sexual intercourse while she was staying with the Ballards at the Cutler house, these acts occurring at the house and in defendant's automobile at different places in the vicinity of Wessington Springs. In the latter part of May 1944 the Ballards moved from the Cutler house to a house described in the evidence as the Week's house. The Week's house was larger than the Cutler house having four bedrooms upstairs and a study downstairs. In November 1944 Opal was operated for appendicitis at Huron and after about two weeks returned to Wessington Springs to stay at her sister's home during convalescence. During this time the defendant visited her at least once a day and sometimes twice and on one of these visits Opal's sister found them in a compromising position. In January 1945 Mrs. Ballard went to Sioux City to be away several weeks. The defendant made arrangements for Opal, who was not then attending school, to come to the Ballard home and stay during the absence of Mrs Ballard. Opal arrived at the home either the day that Mrs Ballard left or the day after. Opal testified that the first day she came to the Ballard home following Mrs. Ballard's departure for Sioux City, she had sexual intercourse with the defendant and that she had such intercourse with him each day during Mrs. Ballard's absence. During this time of her stay at the Ballard home there were in the house, in addition to the defendant and Opal, the three Ballard children and two girl roomers who were attending school in Wessington Springs. Each of these girls testified she observed no intimate relations between the defendant and Opal although one of the girls testified that Opal had stated to her that Mrs. Ballard had objected to Opal's relationship with the defendant. In August 1945 Opal went to Sioux City to attend Bible School and she testified that the defendant came down to Sioux City usually every week and on these occasions they continued their illicit relations. On one of these occasions they stayed together overnight at the Warrior Hotel. On another occasion she was returning to Sioux City after Thanksgiving and was met at Mitchell by defendant who took her to Yankton where they stayed overnight at the Flaming Cabins. On another occasion she went with defendant to Grand Island, Nebraska, where they stayed at the Yancy Hotel. Opal testified that on these occasions defendant registered at the hotels under an assumed name and in each instance the signature alleged to have been signed by the defendant on the register was obtained and compared with handwriting of the defendant by a handwriting expert who testified that the signature was in the same hand as the writing with which it was compared. On at least one of these occasions the evidence shows that the name of John Bell was used. On December 10, 1945, there was issued a warrant for the arrest of defendant on the charge of rape in the second degree. Defendant at that time was not in Wessington Springs and the sheriff attempted to locate him by telephone. Within a day or two after the issuance of this warrant defendant called the sheriff from Nebraska and defendant asked the sheriff if he had been looking for him; the sheriff advised defendant that he had but did not tell him the nature of the charge. Defendant advised the sheriff that he would be in Wessington Springs on the following Saturday. Defendant was not seen again until he was apprehended through the F.B.I. on March 8, 1947 at Jeraud's Fort, Pennsylvania. During the absence of defendant there was received by Mr. Harold Schultz a letter signed by John R. Bell. Mrs. Schultz is a sister of Opal. The letter is as follows:
The letter enclosed for Opal is as follows:
The handwriting expert comparing the handwriting of the letter with writings of the defendant testified that both were written by the same party. It appears that the Schultzes made a trip to Sioux City with the defendant and his wife and while the defendant was returning the Schultzes to their home in the country near Wessington Springs and in the absence of his wife, he told them that Mrs. Ballard would die soon and that he planned to marry Opal, that they should not tell anyone about these plans. Opal also testified that defendant had advised her that Mrs. Ballard would not live more than six years and that then they would be married. The defendant did not take the witness stand and Opal's testimony stands undisputed unless it is disputed by the girls residing at the house who stated they observed no intimate relationship between the defendant and Opal and by Mrs. Ballard who testified that she observed nothing intimate between the two and also that there was no opportunity for such intimacy because of the free access to and within the house occupied by the Ballards. Other features of the evidence will be discussed in connection with the Assignments of Error.
We first consider appellant's contention that the record fails to establish the writing, with which the expert compared the other writings, as the writing of the appellant. This writing, Exhibit D, was a portion of a so-called Bible lesson of which Opal had written a part and which, Opal testified, was completed by the appellant. Opal testified that she knew the handwriting of the appellant and that she had occasion to examine his handwriting while taking a Bible course under his direction. She further testified to receiving numerous letters from him all of which she destroyed at his direction, and she testified definitely that the writing of that part of the Bible lesson with which the comparison was made was the writing of appellant. Exhibit D was competent as evidence to show the relationship existing between Opal and appellant and was sufficiently proved as the handwriting of appellant. 20 Am.Jur., Evidence, § 836. No question is here presented of writings which are not otherwise connected with the case and not admissible for other purposes being introduced solely as a standard of comparison. Exhibit D was competent evidence in the case and properly identified as being in the handwriting of the appellant. When the expert was called to make a comparison of the other writings with Exhibit D, there was no objection by appellant to the use of Exhibit D as the basis for comparison. We find no error, under this record, either in the admission of Exhibit D or using it as a basis for comparison.
At the close of the state's case the defendant requested the court to require the state to elect which of the several acts of sexual...
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