State v. Duffy
| Citation | 225 N.W. 61,55 S.D. 110 |
| Decision Date | 13 April 1929 |
| Docket Number | 6409 |
| Parties | STATE OF SOUTH DAKOTA, Respondent, v. JOHN DUFFY and Arthur Maurer, Appellants. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Meade County, SD
#6409—Reversed
Harry P. Atwater, Sturgis, SD
Attorneys for Appellant Duffy.
Thomas G. Wall, Sturgis, SD
Attorney for Appellant Maurer.
Buell F. Jones, Attorney General
Bernard A. Brown, Assistant Attorney General, Pierre, SD
Attorneys for the State.
Opinion Filed Apr 13, 1929
The defendants were informed against for abduction, the information charging that said defendants did commit the crime of abduction, in that on or about the 19th day of July, 1926, in Meade County, S. D., they “did wilfully, unlawfully, and feloniously persuade, induce, entice and take away one R. and one C., they being at the time females under the age of 18 years, from their parents, without the consent of the parents of the said R. and C., for immoral purposes, debauchery, and illicit relationship, contrary to the form of the statutes,” etc. No severance was demanded, nor was any objection made to the plain duplicity of the information, and upon their pleas of not guilty defendants were tried to a jury. A verdict of “guilty as charged in the information” was returned against each of the defendants, pursuant to which the court pronounced judgment, and sentenced each of said defendants to the penitentiary for a term of six years, refused them bail pending appeal, which was granted by this court (see State v. Maurer et al., 211 NW 457), and from such judgment and from the order denying their respective motions for new trial the defendants and each of them have now appealed.
Appellants, by proper record and apt assignments of error, present for our consideration the question of the sufficiency of the evidence to sustain the verdict.
The offense is charged under chapter 1, Session Laws 1921, which reads as follows:
Section 1. That Section 4102 of the South Dakota Revised Code of 1919 be and the same is hereby amended to read as follows:
Under that portion of our statute here involved (which is similar to the statutes of many other state relating to the same crime) there are three essential elements of the offense: First, there must be a persuading, inducing, enticing, coercing, or taking away of a female under the age of 18 years; second, the taking away, enticing, coercing, etc., of such female must be from her father, mother, guardian, or other person having legal charge of her person; third, such taking, enticing, etc., must be for the purpose of debauchery, illicit relationship, concubinage, prostitution, or other immoral purpose. To establish the offense charged in the information in this case it was necessary for the state to prove beyond a reasonable doubt that the females in question were under the age of 18 years; that the appellants persuaded, induced, enticed, or took said females from their parents without the consent of the parents; and that such taking was for debauchery, illicit relationship, or immoral purposes. The gist of the offense in abduction, under statutes such as ours, is the taking of the female, under the statutory age and without the consent of her parents or guardian, for the purpose and with the intent of subjecting the female to sexual relations within the prohibition of the statute. The phrase “illicit relationship” used in the statute and in the information in this case very clearly means illicit and unlawful sexual intercourse. The word “debauchery” as used in our statute and similar statutes and in this information has a quasi technical meaning and is practically synonymous with the phrase “carnal knowledge.” See State v. Curran, 51 Iowa 112, 49 N.W. 1006; State v. Wheeler, 108 Mo. 658, 18 S.W. 924; Putman v. State, 29 Tex. Ct. App. 454, 25 AmStRep 738; State v. Whalen, 98 Iowa 662, 68 N.W. 554; State v. Long, 238 Mo. 383, 141 S.W. 1099.
The words “other immoral purpose” in the statute and the information were correctly defined by the learned trial judge in his instructions to the jury in the following language:
– which instruction was not excepted to and became the law of the case; and the learned trial judge further and correctly instructed the jury (there being no claim by the state in this case of any taking for the purpose of prostitution) that it was necessary in this case for the state to prove that the appellants “enticed these two girls from their parents, with the specific intention of having illicit sexual relations with them.”
As we understand the situation, appellants in this case concede in substance that the females in question were under the age of 18 years; that they were taken away from the custody of their parents by the appellants without the consent of such parents; but appellants most vigorously contend that the state entirely failed to prove, beyond a reasonable doubt or at all, that such taking was for any of the purposes prohibited by the statute as defined by the instructions of the court.
That, under such a statute as this, the state must prove beyond a reasonable doubt, not only a taking within the meaning of the statute, but a taking for a prohibited purpose, and that mere proof of the taking does not raise a presumption that the taking was done with the specific intent necessary to constitute the offense under the statute, is too plain for argument.
Linden v. Oster, 156 N.W. 911.
“And the rule is firmly established, indeed it is elementary, that, where as here the statute makes an offense to consist of an act coupled with a specific intent, the doing of the act raises no presumption that the act was done with the specific intent; but such intent, as well as the act, must be found by the jury as a matter of fact before a conviction can legitimately result.” State v. Gibson, 111 Mo. 92, 19 S.W. 980.
People v. Plath, 100 NY 590, 53 Am. Rep. 236.
The material facts developed by the evidence in this case are substantially as follows: Appellants are young men residing in Harding county, little known in Sturgis, and there was no previous acquaintance between appellants, or either of them, and the females in question. R. resided with her parents in Sturgis and was just past 15 years of age. C. was also a little more than 15 years of age. Her parents resided on a farm some ten miles from Sturgis; but at the time in question C. was working as a domestic for a family in Sturgis and had been so employed for about two weeks. On the 19th day of July, 1926, as the appellant Duffy was walking down the street in Sturgis with some other young men, he met the two girls and made a remark to the young man with whom he was walking something to this effect: “That’s a cute girl,” or “Cute girls.” The girl R. made some comment back, such as, “Yes, we are cute,” or some similar remark. A little later in the afternoon Duffy again met the R. girl on the street and stopped and asked her if she did not want to go for an automobile ride with him and his friend. She said that she would get her girl friend. Shortly afterwards the appellants, driving a Jewett coach belonging to appellant Maurer, drove around the corner at the Majestic Theater and the girls, who had reached there at the same time, got into the car, the C. girl getting in the front seat with Maurer and the R. girl in the back seat with Duffy.
The mother of the R. girl came up the street just in time to see the girls get in the car and drive off, but was not within speaking distance. This was about 4 o’clock in the afternoon. The car was driven from the point where the girls got in down Junction Avenue, toward Rapid City, then turned east one block, then north to the road leading toward Fort Meade; they drove to the sawmill at Fort Meade and turned and came back toward Sturgis, stopping at a point on the military reservation, where one of the appellants got out and secured a bottle of intoxicating liquor apparently hidden along near the road and all took a drink, or at least pretended to take a drink. They then drove to the...
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