State v. Fujita
| Decision Date | 21 December 1910 |
| Citation | 129 N.W. 360,20 N.D. 555 |
| Court | North Dakota Supreme Court |
Appeal from the District Court, Cass county; Honorable Chas. A Pollock, J.
Action by the State of North Dakota against Henry Fujita. From a judgment in favor of plaintiff, and from the order denying defendant's motion for a new trial, defendant appeals.
Affirmed.
Taylor Crum, for appellant.
If error occurs in overruling a challenge for cause, it should be corrected regardless of defendant's unexhausted peremptories. People v. McQuade, 110 N.Y. 284, 1 L.R.A. 279, 18 N.E. 156; People v. Bodine, 1 Denio, 308; Freeman v. People, 4 Denio, 31, 47 Am. Dec 216; People v. Casey, 96 N.Y. 115, 4 Am. Crim. Rep 312; People v. Carpenter, 102 N.Y. 238, 6 N.E. 584.
Where rape is not accomplished, the amount of force is material as showing the intent or lack of intent. State v Canada, 68 Iowa 397, 27 N.W. 288; Stephens v. State, 107 Ind. 185, 8 N.E. 94; People v. Dowell, 136 Mich. 306, 99 N.W. 23; Davis v. State, 31 Neb. 247, 47 N.W. 854.
It must appear that accused assaulted prosecutrix and intended to have intercourse with her. Johnson v. State, 27 Neb. 687, 43 N.W. 425; Krum v. State, 19 Neb. 728, 28 N.W. 278; Skinner v. State, 28 Neb. 814, 45 N.W. 53; Dunn v. State, 58 Neb. 807, 79 N.W. 719; State v. Biggs, 93 Iowa 125, 61 N.W. 417.
Defendant should have been convicted of assault or assault and battery. People v. Dowell, 136 Mich. 306, 99 N.W. 23; State v. Fordham, 13 N.D. 494, 101 N.W. 888; State v. Cody, 18 Or. 506, 23 P. 891, 24 P. 895; N.D. Code of Crim. Proc. § 10072.
Court should have cautioned jury as to conviction on uncorroborated testimony of the prosecutrix. 3 Rice, Ev. 830; People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; People v. Hamilton, 46 Cal. 540; People v. Ardaga, 51 Cal. 371, 2 Am. Crim. Rep. 590.
Andrew Miller, Attorney General, and Arthur W. Fowler, State's Attorney, for respondent.
If a juror will put aside any impression or opinion and try the case fairly, he is competent. State v. Ekanger, 8 N.D. 559, 80 N.W. 482; State v. Werner, 16 N.D. 83, 112 N.W. 60.
It is not error to overrule challenge for cause, if defendant has peremptories left. 24 Cyc. Law & Proc. p. 328; People v. Decker, 157 N.Y. 186, 51 N.E. 1018.
Where prosecutrix is under age, if defendant assaulted and intended sexual intercourse, whether he intended to use force or not is immaterial. 33 Cyc. Law & Proc. p. 1495; Territory v. Keyes, 5 Dak. 244, 38 N.W. 440; People v. McDonald, 9 Mich. 150; People v. Lourintz, 114 Cal. 628, 46 P. 613; State v. Grossheim, 79 Iowa 75, 44 N.W. 541; Polson v. State, 137 Ind. 519, 35 N.E. 907; State v. Sargent, 32 Or. 110, 49 P. 889; Re Lloyd, 51 Kan. 501, 33 P. 307; Addison v. People, 193 Ill. 405, 62 N.E. 235; Murphy v. State, 120 Ind. 115, 22 N.E. 106; 2 Am. & Eng. Enc. Law, p. 988; 10 Enc. Ev. p. 586; People v. Goulette, 82 Mich. 36, 45 N.W. 1124; Davis v. State, 31 Neb. 247, 47 N.W. 855; Com. v. Roosnell, 143 Mass. 32, 8 N.E. 747.
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 forty-nine years of age, and the female upon whom it is alleged that he perpetrated this crime is about the age of fifteen 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; 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 underwaist on. After she dropped asleep defendant, who was bare naked, got in her bed, untied her drawers and pulled them down; 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 mamma 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 fifteen 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 Herbert. 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 anyone 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 Herbert 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 the 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. Law & Proc. pp. 286-298 inclusive; People v. Casey, 96 N.Y. 115, 4 Am. Crim. Rep. 312; 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: Mr. Stambough, 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: 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...
To continue reading
Request your trial