State v. Gunderson

Citation26 N.D. 294,144 N.W. 659
PartiesSTATE v. GUNDERSON.
Decision Date22 November 1913
CourtUnited States State Supreme Court of North Dakota
OPINION TEXT STARTS HERE
Syllabus by the Court.

In a prosecution for rape, where the defendant's previous good reputation is thoroughly established, and where the state relies for a conviction upon the practically uncorroborated testimony of the complaining witness whose reputation for general morality is seriously questioned, and who herself admits a previous act of sexual intercourse with another person, added to which it is actually shown that she was found lying on a bed with still another man, and in which the testimony of the complaining witness even is in many respects unsatisfactory and inconclusive, and in which the prosecuting attorney states to the jury in his argument, “I do not come here to try a case unless the defendant is guilty,” it is held, that the interests of justice require a new trial and a resubmission of the case to the jury.

It is improper and professionally unethical for the prosecuting attorney to state to the jury in his argument that he would not be before them unless the defendant was guilty.

Appeal from District Court, Steele County; Pollock, Judge.

Elmer Gunderson was convicted of rape, and appeals. Reversed.

Chas. A. Lyche, of Hatton, for appellant. J. M. Johnson, of Sharon, P. O. Sathre, of Finley, and John Carmody, Asst. Atty. Gen., for the State.

BRUCE, J.

This is a case where a young man, who the evidence shows to have been of a previously unblemished character and reputation, has been convicted of the crime of rape on the practically uncorroborated testimony of a 15 year old girl, whose character is shown by her own testimony to have been of the lowest. She freely admits that ever since she had been 10 years of age she had attended dances, and that she stayed out at one, testified to in the evidence, till 4 o'clock in the morning; that she drank beer, whisky, and whisky and alcohol punches, and that she had been drunk. She admits that prior to the occasion in controversy she had had sexual intercourse with one man other than the defendant. One witness positively testifies as to having seen her lying on a bed with another man. The evidence shows that she was irregular in her habits, was accustomed to be out at night, and to mingle freely with men. It is a case in which the defendant has denied the charges against him in a clear, straightforward, and emphatic way, and in which the testimony of the complaining witness has, in many respects, been on the whole inconsistent and vacillating, and in many instances opposed to all human probabilities. It is a case, too, in which the complaining witness, having become the mother of an illegitimate child, would naturally seek to place the parentage upon some one. It is shown that she had attempted to induce the defendant to marry her, and that she preferred him to her previous paramours.

[1][2] In such a case, and one which is supported by really no satisfactory corroborative evidence, counsel for the state said to the jury in his closing argument, “I do not come here to try a case unless the defendant is guilty,” and the only notice that was taken by the court of this remark was to be found in the following words: “The court now admonishes the state's attorney that the remark is improper, and suggests that he in no manner refers to his opinions in his further address to the jury.” No one who is at all conversant with jury trials can fail to see the possible prejudice of this remark. The scales were hanging in the balance. On one side is the positive denial of the defendant, on the other is the practically uncorroborated testimony of the complaining witness; that testimony even being more or less contradictory and inconclusive. In such a juncture the state's attorney himself testifies, and seeks to force into the issue his own personality and his own standing and influence. He practically tells the jury that the defendant is guilty, when he knows that he cannot be cross-examined as to his statement. It is universally held that such remarks are not merely a breach of professional propriety and professional ethics, but constitute legal error. See 12 Cyc. and cases cited. See, also, State v. Nyhus, 19 N. D. 326, 124 N. W. 71, 27 L. R. A. (N. S.) 487;Mason v. State (Tex. Cr. App.) 81 S. W. 718;People v. Payne, 131 Mich. 474, 91 N. W. 739;People v. Smith, 162 N. Y. 520, 56 N. E. 1001;Bradburn v. U. S., 3 Ind. T. 604, 64 S. W. 550;State v. Dunning, 14 S. D. 316, 85 N. W. 589;State v. Gillespie, 104 Mo. App. 400, 79 S. W. 477;Johnson v. State, 46 Tex. Cr. R. 291, 81 S. W. 945;Tyler v. State (Tex. Cr. App.) 79 S. W. 558;Wilson v. State, 41 Tex. Cr. R. 179, 53 S. W. 122;Long v. State, 81 Miss. 448, 33 South. 224;White v. State, 136 Ala. 58, 34 South. 177;Chapman v. State, 43 Tex. Cr. R. 328, 65 S. W. 1098, 96 Am. St. Rep. 874;State v. Trueman, 34 Mont. 249, 85 Pac. 1024;State v. Rose, 178 Mo. 25, 76 S. W. 1003;Oldham v. Com. (Ky.) 58 S. W. 418. See, also, Code of Ethics of American Bar Association, § 15; 1 Bishop, New Criminal Procedure, § 293. Some courts, indeed, hold that the error is such as cannot be cured by an instruction or admonition of the court. See King v. State, 91 Tenn. 617, 20 S. W. 169;...

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