State v. Fox
| Citation | 31 N.W.2d 451,72 S.D. 119 |
| Decision Date | 03 March 1948 |
| Docket Number | 8941. |
| Parties | STATE v. FOX. |
| Court | Supreme Court of South Dakota |
Francis J. Parker, of Deadwood, for appellant.
Sigurd Anderson, Atty. Gen., and Benj. D. Mintener, Asst. Atty Gen., for respondent.
The appellant was convicted of rape in the first degree on an information filed by the state's attorney of Meade County, which charged 'that on the 8th day of May, 1946, within the County of Meade and State of South Dakota, the said James Fox, Jr., did wilfully, unlawfully, and feloniously have unlawful sexual intercourse with Kathryn Gerber, an unmarried female person, not the wife of the said defendant, and the said Kathryn Gerber being a person of unsound mind and incapable of giving legal consent thereto.'
The applicable sections of our code under which the defendant was tried and convicted are as follows:
'(2) Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent; * * *.'
* * *' * * *'
The appeal to this court is from the judgment and from the orders of the trial court denying a new trial. The appellant specified five separate assignments of error, but has presented for our consideration assignments four and five which raise the sole question of the sufficiency of the evidence to support the verdict. Assignments of error not argued in the brief or presented in oral argument are deemed abandoned. State v Whitmarsh, 26 S.D. 426, 128 N.W. 580; State v. Shephard, 30 S.D. 219, 138 N.W. 294; State v. Korth, 38 S.D. 539, 162 N.W. 144, judgment reversed on rehearing, 39 S.D. 365, 164 N.W. 93; State v. Uren, 39 S.D. 15, 162 N.W. 745; State v. Steensland, 56 S.D. 534, 229 N.W. 395. The appellant assigns as error without discussion that the evidence does not show the defendant accomplished an act of sexual intercourse with the prosecutrix. This claim is wholly without merit.
It appeared from the undisputed evidence that the prosecutrix, who was about thirty-four years of age and unmarried, resided with her parents on a farm near Cedar Canyon, in Meade County, South Dakota. On the afternoon of the day the crime is alleged to have been committed, the prosecutrix was alone in the home. Her mother and brother had left that morning by car for a tour of the Black Hills, and the hired man was working in a field some distance from the house. At the trial, prosecutrix was called as a witness for the State, and testified at length under direct and cross examination. Concerning the act of sexual intercourse she testified in substance that the defendant came to the house right after noon while she was alone, and sat down; that he helped himself to a bottle of beer, and after a while he tried to catch her; that she tried to run away but defendant caught her, tied her hands with a piece of rope, put her on the bed in her brother's bedroom, tore off her bloomers, took off his pants, got on top of her and had intercourse with her several times; and that he finally released her when her sister, Mrs. Ted Olson, came about five o'clock in the afternoon. This testimony was substantially corroborated by that of Mr. and Mrs. Ted Olson.
Mrs. Ted Olson, a sister of the prosecutrix, testified that she came to the Gerber home with her husband, Ted Olson, and her daughter Florence, and Ilene Knutson, between five and six o'clock in the afternoon, and found her sister crying and hysterical and unable to tell her what had happened, except to say that there was a drunk man in the house and she wanted to get rid of him; that the defendant was in the house sitting on a davenport drinking a bottle of beer; that she went into the bedroom and found the bed 'all wrinkled up--crumpled up.' There were beer bottles and cigarettes burning, some on the bed and some on the floor; there was a discharge on a blue flannel quilt that was on the bed which she identified as semen. Her sister's wrists above the the hands were red and scuffed, and her sister's bloomers were hanging on the bed with the rubber torn.
Ted Olson, a brother-in-law of the prosecutrix, also testified that he arrived at the Gerber home about five o'clock in the afternoon in a car with his wife, daughter Florence, and Ilene Knutson; that the prosecutix was 'kind of in hysterics'; that the defendant came out of the house with a bottle of beer in his hand and appeared to be intoxicated; that there were bottles and cigarette butts thrown in the living room on the floor, and on the bed and floor of the bedroom; that he observed a discharge on a navy blue quilt on the bed which he positively identified as semen.
It is next claimed that the evidence does not establish beyond all reasonable doubt that the prosecutrix was, at the time of the alleged occurrence of the act of sexual intercourse between her and the defendant, either through lunacy or other unsoundness of mind, temporary or permanent, incapable of giving legal consent. The record of the testimony of the prosecutrix discloses that she was not a person of normal or average intelligence; she did not know the names of her parents, her own age, or how long she had attended school; she did not comprehend the meaning of many simple questions put to her by the state's attorney or by counsel for the defendant. On cross examination and in answer to leading questions she testified that she knew what the defendant wanted, that it was not right, that she could have consented but did not. Later on in the same cross examination, when asked if she knew what the defendant did to her was wrong, she repeatedly answered that it was right. It also appears from the record that the prosecutrix had very little knowledge or conception of sex matters. When asked to tell what the defendant did, she said, 'He caught me anyway and put me in bed and 'drizzled' me.' When asked to explain what she meant, she said, 'I can't--I don't know what I mean.' It was only after much interrogation with leading questions that counsel for the state and for the defendant were able to obtain the sordid details of the sexual penetration.
Concerning the prosecutrix' mental condition, the witness, Mrs. Ted Olson, testified that her sister Kathryn was born in 1912; that she attended school every year until she was sixteen or seventeen years old and never passed the second grade; that her sister never appeared bright at any time, and while she could dress herself with common clothes or do simple things, she could not tell time by the clock, cook, or sew, or do anything where it took mental ability to do it. She further testified on cross examination that her sister would not know the nature of an act of sexual intercourse.
Mrs. Philip Gerber, mother of the prosecutrix, also testified that she had six living children; that Kathryn was thirty-four years of age, and had always lived with her, but did not have the same mental competency as the rest of her children; that she sent her to school five or six years but her daughter could never pass the second grade;...
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