State v. Fulks, 10462

• Citation: 83 S.D. 433,160 N.W.2d 418
• Decision Date: 24 July 1968
• Docket Number: No. 10462,10462
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Milton FULKS, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 418

160 N.W.2d 418

83 S.D. 433

STATE of South Dakota, Plaintiff and Respondent, v. Milton FULKS, Defendant and Appellant.

No. 10462.

Supreme Court of South Dakota.

July 24, 1968.

Kenneth Heisterkamp, Rapid City, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Donald E. Erickson, Ass't Atty. Gen., Pierre, James R. Brennan, State's Atty., Rapid City, for plaintiff and respondent.

HANSON, Presiding Judge.

Davine Shangreaux, a thirteen year old girl, was the victim of an alleged multiple rape in a Rapid City motel on March 22, 1967 by defendant, Milton Fulks, and two other negro airmen. The three participants were charged with the crime of second degree rape and were separately tried. Defendant appeals from his conviction.

Several of the same alleged errors assigned by defendant were presented and considered by this court in the companion case of State v. Billy Gene Barber, which was decided May 13, 1968 and reported in 158 N.W.2d 870. It was there determined: (1) the variance between Davine Shangreaux's alleged age of fifteen and her proven age of thirteen, was not substantial or prejudicial as both ages were below the critical age of consent; (2) allegations and proof of force, violence, and resistance are surplusage and immaterial in a charge of second degree rape under SDC 13.2801, where the female is under the age of eighteen years; and (3) the search of the motel unit and seizure of evidence therefrom such as bed clothing did not violate defendant's statutory or constitutional rights as he has no standing to complain of a search or seizure of another's premises or property.

Citing and relying on the case of People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092, defendant further contends the trial court erred in failing to instruct the jury that the state was obligated to prove defendant knew the complaining witness was below the age of consent. The Hernandez case involved a prosecutrix who was seventeen years and nine months old at the time she voluntarily and willingly engaged in sexual intercourse with the defendant. Under those circumstances, the California court held that a reasonable belief the girl was over the age of consent was a defense in a prosecution for statutory rape. This same contention was urged upon and rejected by this court on rehearing the case of State v. Klueber, 81 S.D. 223, 132 N.W.2d 847, which involved the related crime of indecent molestation of a child.

The crime of second degree rape commonly referred to as statutory rape is defined by SDC 13.2801 as 'an act of sexual intercourse accomplished with a female not the wife of the perpetrator * * * where the female is under the age of eighteen years.' This is one of a rather large class of crimes where concert of act and criminal intent is not required. State v. La Mont, 23 S.D. 174, 120 N.W. 1104. Carnal knowledge of a female under the age of eighteen years, not the wife of the perpetrator, with or without her consent constitutes the crime. Lack of consent, lack of force, and lack of resistance are not essential elements. A person who engages in sexual intercourse with a female below the statutory age of consent does so at his peril. The arbitrary age of consent in these cases has been established by our legislature as a matter of public policy for the obvious protection of young and immature females. We cannot properly make exceptions. Therefore, in a prosecution for alleged statutory rape a defendant's knowledge of the age of the girl involved is immaterial and his reasonable belief that she is over the age of eighteen years is no defense. See Annot., 8 A.L.R.3d 1100; 1 Wharton's Criminal Law and Procedure § 321, p. 662; 75 C.J.S. Rape § 9, p. 471; 44 Am.Jur., Rape, § 18, p. 913; and see South Dakota Pattern Jury Instructions, Criminal 3--7--460.

Asserting the testimony of the prosecuting witness to be unreliable, improbable, and fairly impeached defendant contends the trial court erred in refusing to instruct the jury that her testimony had to be corroborated by other evidence in order to sustain a conviction. The same contention was asserted and rejected in State v. Fehr, 45 S.D. 634, 189 N.W. 942.

It is not essential to a conviction of statutory rape that the testimony of the complaining witness be corroborated by other evidence. State v. Rash, 27 S.D. 185, 130 N.W. 91; State v. Dachtler, 43 S.D. 407, 179 N.W. 653; State v. Williams, 47 S.D. 68, 196 N.W. 291; Annot., 60 A.L.R. 1124. In discussing this subject in State v. Dachtler the court expressed its 'full agreement with what we believe to be the uniform holding of those courts which, while holding that a person may be convicted of the crime of rape upon the uncorroborated testimony of the complaining witness, yet hold that this cannot be rightfully done where, from the whole record, it appears that such testimony is unreliable, improbable, or where such witness has been fairly impeached.' This qualification is not a matter for jury determination. It merely provides a standard for courts in testing the sufficiency of evidence in these cases for submission of a case to the jury, for purposes of a new trial, and for review.

In any event, this case is not within the exception. The testimony of the...