State v. Fujita

• Decision Date: 21 December 1910
• Parties: STATE v. FUJITA.
• Court: North Dakota Supreme Court

20 N.D. 555

129 N.W. 360

STATE

v.FUJITA.

Supreme Court of North Dakota.

Dec. 21, 1910.

Syllabus by the Court.

Following the rule announced in State v. Ekanger, 8 N. D. 559, 80 N. W. 482, and State v. Werner, 16 N. D. 83, 112 N. W. 60, it is held that a juror who states on his voir dire that he has formed and entertains an opinion as to the guilt or innocence of the accused, which it will require some evidence to remove, is not disqualified from serving, where it appears that such opinion is based wholly upon newspaper accounts of the transaction, and common street gossip, provided it satisfactorily appears to the court that the juror can, and will, if accepted, notwithstanding such opinion fairly and impartially try the case on the testimony adduced and the law as given by the court.

The decision of the trial court in such a case is entitled to great respect, and will be disturbed only when it clearly appears that there was an abuse of discretion.

The trial court has a large discretion in permitting leading questions.

A man who attempts to have carnal knowledge of a girl under the age of consent may be convicted of an assault with intent to commit rape.

Evidence examined, and held sufficient to sustain the verdict.

The charge of the court to the jury fully and fairly states the law of the case.

Record examined. Held, that counsel for the state made no remarks in the arguments to the jury not warranted by the evidence.

Additional Syllabus by Editorial Staff.

In the absence of statute or rule of law requiring corroboration, no corroboration of the prosecutrix is necessary to a conviction for an assault with intent to commit rape.

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

Henry Fujita was convicted of assault and battery with intent to commit rape in the first degree, and appeals from the judgment and from orders denying a new trial, and imposing a fine. Affirmed.

Taylor Crum, for appellant. Andrew Miller, Atty. Gen., and Arthur W. Fowler, State's Atty., for the State.

CARMODY, J.

Defendant, who is a native of Japan, was convicted in the district court of Cass county on August 2, 1910, of the crime of assault and battery with intent to commit rape in the first degree, and from orders denying a new trial and from a judgment sentencing him to confinement in the penitentiary for a term of five years, and that he be fined $500, he appeals to this court, alleging numerous errors in the rulings of the trial court, and also alleging insufficiency of the evidence to sustain the verdict.

Appellant is about 49 years of age, and the female upon whom it is alleged that he perpetrated this crime is about the age of 15 years. Defendant was the proprietor of a restaurant on Front street in the city of Fargo, a two-story building in which there were roomers upstairs. The prosecutrix went to work at his place in June, 1909, stayed there about five weeks, slept in a room on the ground floor, next to a room occupied by the defendant with a curtain for a door between the two rooms. A colored woman named May Ford was keeping house for the defendant, and was in some measure his business partner. The prosecutrix testified: That about the 6th or 7th of July the colored woman was working out, and defendant came in her room Tuesday night, got in her bed, and tried to do things to her; that she would not let him. The second night he came in her bed twice, tried to do things to her. She told him he could not do it. The third night she went to bed with her underskirt, underdrawers, and under-waist on. After she dropped asleep defendant, who was bare naked, got in her bed, untied her drawers, and pulled them down, and pulled her petticoat up; after he got into bed, tried to pull her over, and she hung to the bed. He talked some, but she could not understand what he said. He tried to pull her legs apart. She told him to get out of bed; she would tell the police. He got out of bed, and went to his own room. She also testified that on four previous occasions he took her on his lap and kissed her. She tried to get off his lap and he would not let her. He hung to her. She also testified that she called the colored lady “Mama” and the defendant “Papa,” and told them that they were so good to her she wanted to be their girl, and stay there always with them; claimed her father used to beat her, threatening to kill her, and that the defendant and the colored lady were good to her, got her clothes and shoes, and treated her like their own child. She did not cry out or make any noise when defendant came into her room. She went to school a week while at the restaurant. Previous to the assault the colored woman and defendant quarreled, and she left the place. After the alleged assault, the colored woman took the prosecutrix away from defendant's restaurant to the Hollow. Defendant drove the colored woman away. A man named Johnson took the prosecutrix away from the Hollow to Miss Topping's. Prosecutrix left defendant's restaurant Friday, and went to Miss Topping's Sunday. Miss Topping had charge of the Crittenden Home. Three women, two colored and one white, roomed upstairs over the defendant's restaurant. Defendant denied getting into the bed with the prosecutrix; claimed that it was warm weather, that she was uncovered, and that folks could see her through the window, and he went into her bedroom and covered her up on two or three occasions; claimed that he worked nights and went to bed daytimes; kept part of his stock in the prosecutrix's bedroom; said the prosecutrix kept a light in her room; said she was just like his own daughter. He had about 15 rooms upstairs. There was also some evidence pro and con as to the reputation of defendant's restaurant.

The first two assignments call into question the correctness of the rulings of the trial court in denying defendant's challenge for actual bias to jurors Aselson and Hebert. The juror Aselson on his voir dire stated, in substance, that he had read some articles in the Fargo newspapers about some alleged doings of the defendant on Front street; that he believed some of the articles and some he did not; that he never talked with any one about the case; that he had formed an opinion that would require evidence to remove. On being examined further, it developed that the opinion which he entertained was based solely upon these newspaper articles; that, if sworn as a juror, he would disregard this opinion, and render a fair and impartial verdict based upon the evidence. The juror Hebert testified that he had formed an opinion as to the guilt or innocence of the defendant that it would take evidence to change. On being examined further, he testified that the opinion he had formed was based solely upon street gossip; that he had no clear or definite recollection of what he heard; that, if sworn as a juror, he could and would put aside this impression or opinion that he had, and try the case on the evidence given on the witness stand by the witnesses, and a true and impartial verdict render upon such evidence under the instructions of the court. From a careful examination of the testimony of those two jurors, we are unable to say that the trial judge in whom is vested by law a very wide discretion in such cases clearly abused its discretion. See State v. Church, 6 S. D. 89, 60 N. W. 143;State v. Ekanger, 8 N. D. 559, 80 N. W. 482;State v. Werner, 16 N. D. 83, 112 N. W. 60; 24 Cyc. 286-298, inclusive; People v. Casey, 96 N. Y. 115;People v. Carpenter, 102 N. Y. 238, 6 N. E. 584.

Defendant complains that the counsel for the state led the complaining witness, by leading questions, both at the preliminary hearing and at the trial, which were not for the purpose of identification of persons or things, nor where she was called to contradict another, when she was not a hostile witness, nor where the matters were of a complicated nature, nor introductory. No objection was made to the so-called leading questions except in two instances, to one of which the defendant objected as follows: “I object to these leading questions. I know the witness is not all right, but-” Mr. Stambaugh, who was examining the witness, answered: “I can't do anything else much.” No further objection was made at that time and no ruling. The next objection the record shows is as follows: “Objected to as leading. She can be led to say anything by that kind of questions.” To which the court responded: “A little objectionable, Mr. Stambaugh.” Mr. Stambaugh answered: “I know, but this is redirect examination, and it is difficult to make this witness- The Court: I realize that. Mr. Stambaugh: I will not go any further with it.” These are all the objections that seem to have been made to so-called leading questions, and no ruling was made thereon. There must have been a manifest abuse of discretion by the trial court in permitting a party to ask leading questions of a witness before a case will be reversed on that ground. It must have influenced the answer and injury must have resulted. 8 Ency. of Ev. 161. Leading questions are discretionary with the trial court, and not ground for reversal, unless it appears from the answers of the witness that he was influenced in making them by the form of the questions. Reddin v. Gates, 52 Iowa, 210, 2 N. W. 1079. It is elementary that the trial court has a large discretion in permitting leading questions. Appellant claims that the evidence is insufficient to justify the verdict, and says: “It is conceded here, as it was conceded in the court below, that no force or fear is necessary to be shown if sexual intercourse is proven upon a female child under the age of consent. Testimony as to force or fear in such a case would be wholly immaterial. It must also be conceded here, as it was in the court below, that there is not sufficient evidence, in the case at bar, to sustain a verdict for an assault with intent to commit rape upon a woman above the age of consent. The...