State v. Eli

• Decision Date: 03 February 1954
• Docket Number: Cr. N
• Citation: 62 N.W.2d 469
• Parties: STATE v. ELI. o. 254.
• Court: North Dakota Supreme Court

Page 469

62 N.W.2d 469

STATE v. ELI.

Cr. No. 254.

Supreme Court of North Dakota.

Feb. 3, 1954.

Syllabus by the Court.

1. Where the sufficiency of the evidence to sustain the verdict in a criminal action is not challenged in the trial court, the question of the sufficiency of the evidence cannot be considered on appeal.

2. Where a defendant was tried on an information charging him with rape in the first degree and the jury found him guilty of the crime charged and under the evidence, if guilty at all, he was guilty only of rape in the first degree, he was not prejudiced by an instruction which defined the three degrees of rape and advised the jury that they could find the defendant guilty of whatever degree they thought the state had proved beyond a reasonable doubt.

3. In a prosecution for statutory rape of a female under the age of eighteen years the defendant may not impeach the credibility of the prosecuting witness by introducing evidence with respect to her reputation for chastity or lewdness.

4. Where the defendant in a prosecution for statutory rape moves the court for an order for a blood test of the complaining witness and her child and shows that at the preliminary hearing she testified to facts which, if true, would establish the defendant to be the child's father, but it does not appear when the child was born, whether it was within the jurisdiction of the court, or even living at the time the motion was heard, the trial court did not err in denying defendant's motion.

George E. Duis and E. J. Murphy, Fargo, for defendant and appellant.

E. T. Christianson, Atty. Gen., Lee F. Brooks, State's Atty. of Cass County, Fargo, and C. J. Serkland, Asst. State's Atty., Fargo, for plaintiff and respondent.

MORRIS, Chief Justice.

The defendant appeals from a judgment and sentence entered upon his conviction by a jury of the crime of rape in the first degree. The criminal information charged that on or about the 22nd day of November, 1952, the defendant had sexual intercourse with the complaining witness, a female of the age of fifteen years.

The scope of our review is limited by the inadequacy of the record presented. The defendant attempts to challenge in this court for the first time the sufficiency of the evidence to support the verdict. The sufficiency of the evidence is not before us.

'Where, in a criminal action, the sufficiency of the evidence to sustain a verdict is not challenged either by motion for an advised verdict, or after verdict, by motion for a new trial, the question cannot be considered on appeal.' Syllabus 1, State v. Fahn, 53 N.D. 203, 205 N.W. 67. Also, State v. Mostad, 70 N.D. 73, 291 N.W. 910; State v. McClelland, 72 N.D. 665, 10 N.W.2d 798; State v. Johnson, 68 N.D. 236, 278 N.W. 241.

The defendant challenges the correctness of the trial court's instruction with respect to the crime of rape in which the court defined the three degrees of rape and in effect instructed the jury that if they found the defendant guilty to their satisfaction beyond a reasonable doubt, they should determine of which degree of rape he was guilty. The defendant points out that rape in the first degree is the only crime at issue and that under the evidence the defendant was either guilty of rape in the first degree or not guilty of rape at all.

We accept the defendant's version of the evidence, but that version is fatal to his assignment of error. The instruction with respect to second and third-degree rape was wholly superfluous, but that does not mean that the giving of the instruction amounted to prejudicial error.

'An instruction on an offense lower than that charged need not be given where there is no evidence of the commission of such lower offense, although the giving of such an instruction is not error and should be refused only in exceptional instances.' 23 C.J.S., Criminal Law, Sec. 1288, p. 864.

Where, as in this case, the defendant was charged with rape in the first degree and the jury found him guilty of the crime charged, and under the evidence, if guilty at all, he was guilty of the crime charged, he was not prejudiced by an instruction with respect to the included offenses. 53 Am.Jur., Trial, Section 798, page 592; Annotations, 21 A.L.R. 621, 27 A.L.R. 1100, and 102 A.L.R. 1025; Woods v. State, 208 Ga. 456, 67 S.E.2d 568.

The defendant specified that the court erred in denying his offer of proof wherein he offered to prove 'that the character and reputation of prosecutrix was not good and she had been known for her running around and for being of lewd character in her own community; * * *.' Defendant's counsel stated that the proof was offered only with a view to affecting the credibility of the prosecutrix.

Prior to the time the offer was made the defendant had been permitted to cross-examine the prosecutrix as to whether or not she had had sexual relations with men other than the defendant. She stated that she had had sexual relations with no other men and only once with the defendant. It also appears from her testimony on direct examination that as a result of the one act of intercourse she became pregnant and had given birth to a child prior to the trial. In support of his contention that the trial court should not have rejected the offer of proof, the defendant cites State v. Apley, 25 N.D. 298, 141 N.W. 740, 48 L.R.A.,N.S., 269. That case involves statutory rape of a sixteen year old girl. She had testified that she had had sexual intercourse only once with any one other than the defendant. This court held:

'It was error to exclude cross-examination tending to show that the prosecutrix, about a year before the alleged rape upon her by defendant, had been an inmate of a house of prostitution for a period of three weeks.'

'Such testimony, when elicited under cross-examination of prosecutrix, was admissible as proof of unchastity and immoral character of the prosecutrix as bearing directly upon her credibility, even though she was under the age of consent, and her consent to the commission of the acts charged as constituting the offense was immaterial.'

The limits applicable to the Apley case are well expressed in Rowe v. State, 155 Ark. 419, 244 S.W. 463, 464, wherein it is stated:

'The chastity of the prosecutrix is not in issue in prosecutions under the carnal abuse statute, and while the prosecutrix may be asked, on her cross-examination, about other illicit intercourse, this is only for the purpose of impeaching her as a witness--a circumstance to be considered by the jury in passing upon the credibility of the witness. But as the matter is collateral to the main issue, her answers, whether true or false, conclude the inquiry.'

In this case the defendant seeks to attack the chastity of the prosecutrix by independent testimony which would enbroil the trial court and jury in the determination of an extraneous and collateral issue and thus initiate a rule which could not be logically confined to cases of statutory rape but would extend to other criminal prosecutions as well.

In People v. Gray, 251 Ill. 431, 96 N.E. 268, 273, the prosecuting witness was fifteen years of age. The defendant who was charged with statutory rape insisted that the trial court erred in excluding evidence as to the reputation of the complaining witness for chastity. The court said:

'If the reputation of the prosecuting witness for chastity were to be held admissible as going to her general credibility, then logically such testimony would be equally admissible as to the credibility of any female who might be called to give evidence in any case. The court properly...