State v. Flath, 69.

• Decision Date: 14 August 1931
• Docket Number: No. 69.,69.
• Citation: 237 N.W. 792,61 N.D. 342
• Parties: STATE v. FLATH.
• Court: North Dakota Supreme Court

61 N.D. 342

237 N.W. 792

STATE

v.FLATH.

No. 69.

Supreme Court of North Dakota.

Aug. 14, 1931.

Syllabus by the Court.

In a prosecution for taking indecent liberty with the person of a child (chapter 167, Laws 1923, section 9562a, Supplement), the state may not introduce evidence tending to show that the accused has committed similar acts upon the persons of other boys for the purpose of “showing the general licentious character of the defendant.” The admission of such evidence is error prejudicial to the substantial rights of the accused, and necessitates a reversal of the judgment of conviction.

Appeal from District Court, Mountrail County; Moellring, Judge.

A. 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.

Judgment and order both reversed, and cause remanded for a new trial.

BURR, J., dissenting.F. T. Cuthbert, of Devils Lake, and F. F. Wyckoff, of Stanley, for appellant.

James Morris, Atty. Gen., of Bismarck, and C. N. Cottingham, State's Atty., of Stanley (F. W. Medbery, of Stanley, on oral argument), for the State.

CHRISTIANSON, C. 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 (section 9562a, Supplement to the Compiled Laws of 1913), 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; section 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 showingthe 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 some offense other than the one with which he is then charged is not a proper matter of inquiry.

The state, however, may bring forth any evidence having a logical and legal tendency to establish any fact in issue in such action–that is, the state may introduce any relevant, legal evidence tending to show that the defendant is guilty of the particular crime charged–and this evidence does not become inadmissible because it also shows or tends to show that the defendant is guilty of another and distinct offense. Thus, where “several crimes are intermixed or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them can not be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.” Underhill's Criminal Evidence (3d Ed.) § 152. And where in a criminal case some material fact, such as intent or motive, is involved, the state may offer evidence tending to establish such fact, and such evidence if otherwise admissible is not rendered inadmissible because in addition to tending to prove the particular fact in the case on trial it also tends to show that the defendant has committed some other offense. In short, evidence which is otherwise legally competent and relevant does not become inadmissible because, in addition to its tendency to prove the defendant guilty of the particular crime for which he is being tried, it also shows or tends to show that he has committed some other offense. For “evidence which is relevant is not made inadmissible by reason of the fact that it tends to prove the defendant guilty of a crime other than the one for which he is being tried.” Cothron v. State, 138 Md. 101, 109, 113 A. 620, 624. See, also, State v. Gummer, 51 N. D. 445, 478, 200 N. W. 20;State v. Heaton, 56 N. D. 357, 217 N. W. 531. But “such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge upon trial.” Cothron v. State, supra; State v. Gummer, supra; State v. Heaton, supra; Wentz v. State, 159 Md. 161, 150 A. 278.

We are entirely at a loss to see any legal basis in this case for the admission of the evidence relating to the alleged other offenses. The real purpose for the introduction thereof seems to have been that stated by the prosecuting attorney, namely, to show “the general licentious...