State v. Barber

• Decision Date: 13 May 1968
• Docket Number: No. 10470,10470
• Citation: 158 N.W.2d 870,83 S.D. 289
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Billy Gene BARBER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 870

158 N.W.2d 870

83 S.D. 289

STATE of South Dakota, Plaintiff and Respondent, v. Billy Gene BARBER, Defendant and Appellant.

No. 10470.

Supreme Court of South Dakota.

May 13, 1968.

Robert A. Warder, Rapid City, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Thomas R. Vickerman, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

HOMEYER, Judge.

Defendant, Billy Gene Barber, appeals his conviction of the crime of rape in the second degree.

The information charged that on or about March 22, 1967, he wilfully, unlawfully and feloniously accomplished 'an act of sexual intercourse with a female named Davine Shangreaux, she not being the wife of the defendant, she being under the age of 18 years, to wit: 15 years of age, and she being prevented from resisting said act by threats of immediate and great bodily harm accompanied by an apparent power of execution in violation of SDC 13.2801, * * *' The charge appears to have been drawn under subdivisions (1) and (4) of the quoted statute both of which constitute only second degree rape. SDC 13.2801, 13.2803; State v. Thompson, 71 S.D. 319, 24 N.W.2d 10. If the victim was under eighteen years of age allegations and proof under subdivision 4 were surplusage and not essential to the charge. They could only be essential if the alleged victim was over the age of eighteen years.

Appellant assigns error because he says the proof did not conform to the allegations of the information. There is no merit in this contention. The mother of Davine Shangreaux fixed the victim's age at thirteen years and she was a competent witness for that purpose. State v. Hemmenway, 80 S.D. 153, 120 N.W.2d 561. Other parts of the record reveal the child mistakenly considered her age as fifteen years. Either age was within the essentials of the charge. The information named the victim and appellant was properly and adequately apprised of the nature and cause of the accusation against him, so that he could prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense. State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455.

Error is also urged because the trial court did not instruct the jury that it could find appellant guilty of assault and battery as a lesser included offense although requested so to do. SDC 34.3669 provides: 'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information * * *.'

This statute has heretofore been considered by this court in a number of cases. In State v. Rasmusson, 72 S.D. 400, 34 N.W.2d 923, we held the trial court did not err when in a second degree manslaughter case it refused to submit to the jury as an included offense the crime of driving while intoxicated. The court said: 'Driving while intoxicated is not an offense included within the manslaughter charge of this information. The two offenses are not the same nor, in our opinion, are they such related offenses as to include one within the other. The proof of driving while intoxicated was merely part of the evidence of the unlawful killing. The two offenses simply stem from the same occurrence but they are not the same either in law or fact. They differ both in grade and kind.'

In State v. Pepka, 72 S.D. 503, 37 N.W.2d 189, the defendant was charged and convicted of an attempt to commit rape upon a female under the age of 18 years. The trial court refused to submit to the jury the crime of assault as an included offense. This court said: 'The question presented is whether the crime of assault is 'necessarily included' in the crime of an attempt to commit rape upon a girl under the age of eighteen years. Under the definition of an assault the attempt to do corporal hurt to another must be with 'force or violence'. * * * Under the provisions of SDC 13.2801 the use of force or violence by the man is not an element of the crime of rape where the female is under the age of eighteen years. * * * We are of the opinion, therefore, that the crime of assault as defined by our law is not an offense 'necessarily included' in the crime charged by this information.' However, when the defendant was charged with first degree rape where force was an essential element, this court in State v. Crofutt, 76 S.D. 77, 72 N.W.2d 435, held that assault with intent to commit rape was an included offense in a charge of rape of the first degree; it was an uncompleted rape and the crime is complete when every element of the crime is present except penetration. Under the evidence in that case we held the trial court erred where it refused when requested to instruct on assault with intent to commit rape as an included offense.

California under a statute which is identical with our statute in essential particulars, Cal. Penal Code, Sec. 1159, has held the test of a necessarily included offense is simply that where an offense cannot be committed...