State v. Flath
| Decision Date | 14 August 1931 |
| Docket Number | 69 |
| Citation | 237 N.W. 792,61 N.D. 342 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Mountrail County Moellring, J. The defendant Flath was convicted of taking indecent liberty with the person of a child and appeals from the judgment of conviction and from an order denying a new trial.
Reversed and new trial granted.
F T. Cuthbert and F. F. Wyckoff, for appellant.
The general rule is that evidence that the defendant on trial has committed other crimes is irrelevant. Farris v People, 129 Ill. 521, 21 N.E. 821; State v. Raymond, 53 N.J.L. 260, 21 A. 328; People v. Sharpe, 107 N.Y. 427, 1 Am. St. Rep. 851, 14 N.E. 319; People v. Molineux, 168 N.Y. 264, 62 L.R.A. 193, 61 N.E. 286; People v. Meyer, 73 Cal. 548, 15 P. 95; State v. Hazlett, 16 N.D. 426, 113 N.W. 374; 12 Cyc. 405-412; State v. Walter, 45 Iowa 389; McAllister v. State, 112 Wis. 496, 88 N.W. 212; Whart. Crim. Ev. 9th ed. 46; 8 R.C.L. § 194.
"Proof of a distinct substantive crime is never admissible unless there is some logical connection between the two, from which it can be said the one tends to establish the other." 8 R.C.L. 206, § 200.
"It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character." State v. Lapage, 57 N.H. 245, 24 Am. Rep. 69.
Evidence that a defendant committed one offense cannot be received to prove that he committed another and distinct offense. State v. Lapage, supra.
The commission of other similar offenses by the defendant cannot be offered in evidence. State v. Rice, 39 N.D. 597, 168 N.W. 369.
Collateral crimes, even though of the same nature may not be offered in evidence. State v. Stepp, 45 N.D. 516, 178 N.W. 951; State v. LaMont (S.D.) 120 N.W. 1104.
"Only skilled witnesses may be asked hypothetical questions." 1 Wigmore, Ev. p. 773.
"A witness who is not an expert cannot testify to his opinion as to the mental capacity without stating the facts or reasons upon which his opinion is based." Ryder v. State, 38 L.R.A. 721, note; Knights of Pythias v. Allen, 104 Tenn. 623, 58 S.W. 241; Miller v. Hamilton Brown Shoe Co. Ann. Cas. 1913B, 108, note; Ala. R.R. Co. v. Frazer, 30 Am. St. Rep. 38, note.
James Morris, Attorney General, C. N. Cottingham, State's Attorney, and F. W. Medbery, for respondent.
"In prosecution for sexual crime, it is competent to introduce evidence of both prior and subsequent acts of like nature in corroboration or explanation of the act relied upon for conviction, or for the purpose of showing the relation and mutual disposition of the parties or guilty knowledge or intent on the part of the accused." Sykes v. State, 112 Tenn. 572, 105 Am. St. Rep. 972, 82 S.W. 185.
All evidence must be pertinent to the point in issue, but if it be pertinent and tends to prove the crime charged against the defendant, it is not to be rejected merely because it also tends to prove the commission of other crimes. People v. Cunningham, 66 Cal. 668, 4 P. 1144, 6 P. 700.
Any relevant testimony is admissible even though it does tend to prove the accused guilty of another crime. People v. Walters, 98 Cal. 138, 32 P. 864; State v. Ames, 90 Minn. 183, 96 N.W. 330; People v. Putnam, 90 A.D. 125, 85 N.Y.S. 1056; State v. Reineke, L.R.A.1915A, 138, 106 N.E. 52; Barnett v. State, 104 Ohio St. 298, 27 A.L.R. 351, 135 N.E. 647.
Evidence of other like crimes committed by the defendant at about the time of committing that for which he is being tried is admissible. State v. Crum (Ind.) 47 N.E. 833.
Relevancy is, in the main, the test of the admissibility of evidence. State v. Heaton, 56 N.D. 357, 217 N.W. 531; State v. Campbell (Iowa) 228 N.W. 22; State v. Fried (Iowa) 230 N.W. 425; State v. Staley (S.D.) 223 N.W. 943; State v. Chandler (Iowa) 217 N.W. 233.
Evidence of other crimes, not connected with the crime charged is not admissible except to show knowledge, intent or design or motive where such is in issue. State v. Fulwider (S.D.) 134 N.W. 807; State v. Kent (State v. Pancoast) 5 N.D. 516, 35 L.R.A. 518, 67 N.W. 1052; State v. Stanley, 38 N.D. 311, 164 N.W. 702; State v. Mott, 53 N.D. 222, 205 N.W. 234; State v. Roby, 49 S.D. 187, 206 N.W. 925; State v. Ewert, 52 S.D. 619, 219 N.W. 817; State v. Gummer, 51 N.D. 445, 200 N.W. 20; Abbott, Crim. Trial Briefs, 3d ed. 729.
Where the crime charged is a part of a plan or system of criminal action, evidence of other crimes near to it in time and of similar character is relevant and admissible to show knowledge and intent of accused and that the act charged was not the result of accident or inadvertence. 16 C.J. 588.
Proof may be made by producing the record of a prior conviction, or a confession of accused, or by circumstantial evidence or the direct evidence of a witness who saw the crime committed. 16 C.J. 502.
"The mental insanity which does not destroy the capacity to know right from wrong constitutes no defense to crime." State v. Leehman, 2 S.D. 171, 49 N.W. 3; People v. Hubert, 119 Cal. 216, 63 Am. St. Rep. 72.
When the defendant produces evidence tending to prove insanity, the burden is then upon the state to prove sanity. Knights v. State, 58 Neb. 225, 76 Am. St. Rep. 78.
Depravity of character and abandoned habits are not in themselves evidence of insanity. 32 C.J. 759; Hall v. State, 8 A.L.R. 1034; 13 R.C.L. 710; 32 C.J. 756; 16 C.J. 102; State v. Throndson, 49 N.D. 348, 191 N.W. 628.
Burr, J.
The defendant was convicted of the crime of taking indecent liberty with the person of a child in violation of the provisions of chapter 167, Laws 1923 () and appeals from the judgment of conviction and from the order denying his motion for a new trial. The statute for the violation of which defendant was convicted reads as follows:
"Every person who shall take any indecent liberty with or on the person of any child, which act under law does not amount to rape, or attempt to commit rape, or assault, with intent to commit rape, or sodomy, or other crime against nature, shall be guilty of a felony and shall be punished by imprisonment in the penitentiary not less than one year nor more than two years." (Chapter 167, Laws 1923; § 9562a, Supplement to the Compiled Laws of 1913.)
The sufficiency of the information, -- that is, whether the facts therein stated constituted a violation of the statute, -- was presented to this court and ruled adversely to the defendant in State v. Flath, 59 N.D. 121, 228 N.W. 847.
The specific charge against the defendant in this action is that he took indecent liberty with the person of one George Smith, a child, by "wilfully, unlawfully, feloniously, lewdly and lasciviously taking into his hands and handling and manipulating" the sexual organ of said George Smith "with the felonious intent then and thereby of arousing, appealing to and gratifying his sexual lust and passions."
The first and principal assignment of error is that the trial court erred in admitting evidence of other crimes. It appears from the record in this case that in addition to the instant case informations were filed against the defendant in two other cases charging him with similar acts with two other boys. Upon the trial of this action the boys mentioned in the other two cases were called and testified as witnesses for the prosecution.
The state's case in chief consisted solely of the testimony of George Smith, the boy upon whose person the offense is charged to have been committed. The defendant, thereupon, was sworn and testified as a witness in his own behalf. He denied emphatically and positively the charges against him and asserted that he at no time committed any of the acts which George Smith had testified to. The state thereupon, on rebuttal, called the two other boys, mentioned in the informations filed in the other two cases, and these boys were permitted to testify in detail as to the alleged criminal acts committed by the defendant upon their persons. This testimony was all admitted over the most strenuous objections on the part of counsel for the defendant. It appears from the record that before the evidence was admitted the state's attorney made an offer of proof and that thereupon an argument upon the question of admissibility was had in the absence of the jury. The trial court at that time seems to have been of the view that the evidence was inadmissible, and sustained an objection to the offer of proof. When the witnesses were called defendant's counsel made a lengthy objection to the admission of the testimony. The state's attorney stated that the testimony was offered "for the purpose of showing a general scheme and for the purpose of showing the general licentious character of this defendant and a general scheme and course of action by him." The trial court thereupon overruled the objection and permitted the testimony to be admitted.
The question involved in a criminal action is whether the defendant is guilty of the particular offense with which he is charged. Hence, the only evidence properly admissible in such action is such as tends to establish either the guilt or the innocence of the defendant as regards the particular offense involved in that case. The state has the burden of establishing the guilt of the defendant of the particular offense charged in that action and it must sustain that burden by the means of competent, legal and relevant evidence. The sole question for determination in such case is whether the defendant has committed the particular offense charged. Obviously the question whether he also has committed...
To continue reading
Request your trial