State v. Harris

• Decision Date: 27 December 1915
• Docket Number: 3716.
• Parties: STATE v. HARRIS.
• Court: Montana Supreme Court

154 P. 198

51 Mont. 496

STATE v. HARRIS.

No. 3716.

Supreme Court of Montana

December 27, 1915

Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.

D. H Harris was convicted of crime, and from the judgment and an order denying his motion for new trial, he appeals. Affirmed.

H. C Crippen, of Billings, for appellant.

J. B Poindexter and C. S. Wagner, all of Helena, for the State.

BRANTLY C.J.

The defendant, charged by information with statutory rape by having unlawful sexual intercourse with Vivian Brooke, a female under the age of 18 years, was convicted and sentenced to a term of service in the state prison. He has appealed from the judgment and an order denying his motion for a new trial.

The charge in the information is that the crime was committed on December 1, 1914. The evidence of the prosecuting witness disclosed that the first act of sexual intercourse between the defendant and herself, occurred on or about August 1, 1914, in the outskirts of the city of Billings. After the witness had testified to a similar act which she said had occurred about two weeks later, counsel for defendant objected to evidence tending to establish any act other than the first, and suggested that the county attorney be required to elect upon which act he would ask for a conviction. The objection was overruled and the suggestion disregarded. The witness then, without further objection, testified to several acts after that time, covering the period until January 1, 1915, the exact date at which any one of them occurred and attendant circumstances not being stated, except as to one which she stated had occurred in the defendant's barber shop in Billings on the evening of December 25. At the close of the state's case the court, on formal motion of counsel, required the county attorney to elect upon which of the several acts he would rely. He elected to stand on the one which occurred on the evening of December 25th. The charge to the jury contained these paragraphs:

"No. 10. You are instructed in this case it is not necessary for the state to prove the date of the alleged offense precisely as charged in the information herein. Therefore, if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, D. H. Harris, at the county of Yellowstone and state of Montana, accomplished an act of sexual intercourse with the prosecuting witness, Vivian Brooke, as alleged in the information, and that at the time of such intercourse the said Vivian Brooke was under the age of 18 years, and not the wife of the defendant, and you further find that such intercourse was had at any time within five years prior to the filing of the information in this case, then you should find a verdict of guilty."

"No. 17. The court instructs the jury that the state in this case has selected the particular act of sexual intercourse alleged to have taken place at the defendant's barber shop on Christmas night of 1914, as the act upon which they are to depend for conviction, and you are instructed that in this case, unless it is proven to you beyond all reasonable doubt that the defendant had said act of sexual intercourse with Vivian Brooke, then you are to find the defendant not guilty.

No. 18. The court instructs the jury that the state having selected the act of sexual intercourse alleged to have taken place at defendant's barber shop on Christmas night of 1914, as the alleged act of intercourse on which they intend to rely for conviction, any testimony as to any other acts of intercourse by the defendant with the complaining witness Vivian Brooke at any other time is to be disregarded, except in so far as it is corroborative of the act alleged to have been committed at the barber shop on Christmas night, and that unless the state proves to you beyond all reasonable doubt that the defendant had said particular act of sexual intercourse with Vivian Brooke, then you are to find the defendant not guilty."

It is argued that the court committed prejudicial error in failing to require the county attorney to announce his election when the suggestion was first made. Some of the courts hold to the rule contended for by counsel. People v. Castro, 133 Cal. 11, 65 P. 13; People v. Williams, 133 Cal. 165, 65 P. 323; People v. Flaherty, 162 N.Y. 532, 57 N.E. 73; State v. Hilberg, 22 Utah, 27, 61 P. 215; Newsom v. Commonwealth, 145 Ky. 627, 140 S.W. 1042; People v. Jenness, 5 Mich. 305; Elam v. State, 26 Ala. 48. The rule deducible from these cases is that, while the specific act alleged in the information need not be proved as charged and conviction may be had upon proof of any of the acts of the same kind, provided it occurred within the period of limitation prior to the filing of the information, when the evidence discloses two or more offenses, the defendant is entitled to know against which he is required to defend; and if the court does not require an election to be made at the opening of the trial, the law makes the election of the first act disclosed. The reasoning of these cases is exemplified by this quotation from People v. Jenness, supra:

"The prosecutor having the right to select among all the acts of the kind which he could prove to have been committed between the parties, within the period alluded to, and within the jurisdiction, any one of those acts, before evidence had been introduced, was as properly the act charged in the information, as any other. In other words, until evidence of some such act had been given, the charge in the information was floating and contingent, aimed as much at one

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