State v. Bushbacker
| Decision Date | 23 July 1918 |
| Court | North Dakota Supreme Court |
Rehearing denied September 24, 1918.
Appeal from the District Court of Morton County, J. M. Hanley, J Conviction affirmed.
Affirmed.
Frank T. Lembke (on trial) and Sullivan & Sullivan (on appeal), for appellant.
A defendant is rightfully entitled to a fair trial, and the presiding judge should so conduct the trial that this right shall not be impaired. 12 Cyc. 519.
In a rape case, evidence of previous statements made by the prosecutrix must show that they were voluntarily made, and not made under the influence of pressure or fright. A mere complaint of the existence of a certain condition is not proper evidence, except to show that the crime has been committed. Such evidence must be confined to the bare fact that complaint was made, without going into details. 33 Cyc 1464; State v. Brener, 16 N.D. 83, 112 N.W. 60.
Statements made in answer to questions, or otherwise involuntarily made, do not constitute such complaint as to be admissible. Such seems to be the settled rule. 33 Cyc. 1468; People v. Wilmot, 139 Cal. 103, 62 P. 838; People v. Lambert, 120 Cal. 171, 52 P. 307.
"In this class of prosecutions, the defendant, owing to the natural instincts and laudable sentiments on the part of the jury, and the usual circumstances of isolation of the parties involved at the time of the commission of the offense, is, as a rule, so disproportionately at the mercy of the prosecutrix's evidence that he should be given the full measure of every legal right." People v. Baldwin, 117 Cal. 251, 49 P. 156; 33 Cyc. 1464.
Evidence or declarations of a third person, not made in the presence or hearing of the defendant, are not admissible, either for or against him. 33 Cyc. 1460.
The evidence of the attorney general as to what the prosecutrix or other said to him before the arrest or at any other time was hearsay and inadmissible. 12 Cyc. 405.
Evidence of other like offenses is wholly inadmissible, especially in this class of cases, and more especially when it comes from the testimony of the prosecutrix, as to admissions made by defendant to her. State v. Haakon (N.D.) 129 N.W. 234; State v. La Mount (S.D.) 120 N.W. 1104.
Evidence to impeach on a collateral matter is not admissible. Schanse v. Goetz, 18 N.D. 594, 120 N.W. 553.
In such cases the jury may find defendant guilty of any offense the commission of which is necessarily included in that with which he is on trial, or of an attempt to commit the crime charged. It was therefore error to instruct the jury that "it is either rape in the first degree, or no crime at all." Comp. Laws 1913, § 1098; People v. Baldwin (Cal.) 49 P. 187; 33 Cyc. 1502.
William Langer, Attorney General, H. A. Bronson and D. V. Brennan, Assistant Attorneys General, and L. H. Connoly, State's Attorney, for respondent.
"The general rule is that all objections to the admission or exclusion of evidence, its competency, relevancy, or sufficiency, and as to the competency of witnesses and their examination, must be made in the trial, and cannot be raised for the first time on appeal." 3 C. J. 807; 59 N.W. (S.D.) 224; (N.D.) 126 N.W. 110; (N.D.) 121 N.W. 63; (S.D.) 94 N.W. 587; 3 C. J. 742.
A defendant on trial will not be permitted to sit mute on the trial and listen to questions asked of the witnesses, and to evidence given, without objection, and then, because the answers are against him, complain for the first time on appeal. (Dak.) 29 N.W. 661.
But, however irrelevant, immaterial, or incompetent evidence may be, the right to raise these questions is completely destroyed and waived by the defendant's participation and cross-examination in relation to the same questions and subject-matter. 33 Cyc. 1467, 1468.
Statements made by defendant outside the trial and relating to the identical matter are competent to show. Jones, Ev. §§ 851, 854.
A motion to strike from the record certain testimony is not analagous to nor does it take the place of a proper objection to the evidence, which should have been interposed at the proper time. (S.D.) 61 N.W. 806.
The court fairly and fully cautioned and advised the jury as to defendant's rights, and as to the presumption of innocence. It is not necessary for the court, in charging a jury, to go into and repeatedly mention all these set and fixed rules, with each phase of his charge and on each point to which he refers. Instructions must be considered as a whole. 12 Cyc. 654; (N.D.) 91 N.W. 436; (S.D.) 50 N.W. 625; 17 N.D. 495.
This is an appeal from the judgment of the district court of Morton county, entered upon the verdict of the jury finding the defendant guilty of the crime of rape in the first degree, and also from an order entered denying a motion for a new trial.
The information charges the offense to have been committed by the defendant upon one Mary Gartner, a female of the age of thirteen years, on or about the 15th day of March, 1916. A detailed statement of the facts is not necessary to an understanding of the questions involved upon this appeal, and we shall only state such of them as are requisite to an intelligent discussion of the questions raised.
It is conceded by the appellant that the evidence is sufficient to support the verdict of the jury, but in the assignments of error questions are raised relative to the conduct of the trial, from which it is argued that the defendant did not have a fair trial. There are twenty-one assignments of error, most of which relate to the admissibility of evidence. Most of the evidence, the admission of which is assigned as error, was not objected to at the time it was offered. On the contrary, a reading of the record discloses that counsel for the defendant availed himself of the opportunity afforded by the broad range of the examination of the state's witnesses to extend his cross-examination, and that he attempted to impeach the various witnesses upon matters covered by the testimony that is objected to for the first time upon this appeal. Brief reference to some of the testimony will serve to illustrate the lack of merit in the appellant's contention. Assignments 1, 3, 4, 7, and 8 refer to evidence given during the trial, to which no objection whatever was made, and relate to the complaint of the prosecuting witness made to her parents. The complaining witness and her father and mother testified to the circumstances under which she communicated her condition to her parents in connection with which the name of the defendant was used as the person who was responsible therefor. It is contended that the particulars of the complaint (if such it was) are inadmissible; at least, insofar as they might embrace a hearsay statement identifying the defendant as the guilty party. But a reading of the record discloses not only that the defendant denied his guilt, but that, as a part of his defense, he sought to establish the guilt of another person. This was foreshadowed early in the trial by the cross-examination of the prosecuting witness, Mary Gartner, wherein it was attempted to commit her to an accusation...
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