State v. Heisinger

Decision Date06 January 1977
Docket Number11968,Nos. 11967,s. 11967
Citation252 N.W.2d 899
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Eugene HEISINGER and Loren Schmidt, Defendants and Appellants. . Reassigned
CourtSouth Dakota Supreme Court

Peter Lieberman, Asst. Atty. Gen., for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

John S. Theeler, of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and appellant Eugene Heisinger.

Lee A. Tappe, of Tappe & Vavra, P.C., Platte, for defendant and appellant Loren Schmidt.

ZASTROW, Justice (on reassignment).

On April 30, 1976, the defendants, Eugene Heisinger and Loren Schmidt, were charged with the rape of a fifteen-year-old female in violation of SDCL 22-22-1. 1 A preliminary hearing was held on May 14, 1976, and the defendants were bound over for trial. The state filed an information and the defendants responded with motions to set aside and demurrers. An intermediate appeal was granted to determine whether the trial court erred in ruling that the presumption contained within SDCL 22-22-1(2) (hereinafter "the presumption") is conclusive, and whether, based upon that ruling, the trial court erred: (1) in denying the motions to set aside the information and (2) in ruling that the defendants had not been denied the right to confront and cross-examine the prosecutrix at the preliminary hearing. We reverse the decision of the trial court that the presumption is conclusive, but affirm the denial of the motions to set aside and demurrers.

The only testimony at the preliminary hearing was that of the prosecutrix. She testified that on the evening in question she had gone to Mitchell and returned to Parkston with friends. Before returning to her parental home, she went to the trailer home of a girl friend. While there, the defendants, whom she knew, carried her from the trailer against her will, though not violently. They then pushed her into Schmidt's car and drove her to a spot near the local grain elevator.

Later, they drove to an isolated area where she was forcibly disrobed and each of the defendants had intercourse with her. The victim testified that she did not consent and resisted to the extent she felt reasonable under the circumstances. See State v. Thompson, 1946, 71 S.D. 319, 24 N.W.2d 10.

Her testimony was that the defendants then returned her to Parkston and left her afoot. Shortly thereafter, Heisinger returned alone in his automobile and offered her a ride home. When she refused, Heisinger forced her into the car and drove to the secluded area. When she attempted to flee, she was caught by Heisinger, who after making threats of physical violence, had intercourse with her again.

Since the prosecutrix testified at the preliminary hearing that she was forcibly raped, a resolution of the defendants' contentions would seem unnecessary. However, because the trial court has ruled that the presumption is conclusive, that the prosecution would proceed as one for statutory rape, 2 and that the defendants would not be allowed to present evidence of consent and capacity on the part of the prosecutrix, the necessity of interpreting the nature of the presumption is apparent.

At early common law, only nonconsensual sexual intercourse with a female was prohibited. 75 C.J.S. Rape § 13. Later, consensual sexual intercourse with a female under the age of ten years was classified as rape and treated as though a forcible rape had occurred. 75 C.J.S. Rape § 1. Our territorial government adopted this common law prohibition and incorporated it as part of the Penal Code of 1887, § 320. Eventually, that statute was amended by Ch. 133, § 1, Dakota Territorial Laws 1887, which provided for rape in the first degree and rape in the second degree (commonly referred to as "statutory rape"). Statutory rape under this classification was consensual sexual intercourse with a female under the age of fourteen years, but not less than ten years. Consensual sexual intercourse with a female under the age of ten years was classified as rape in the first degree.

The "age of consent" for females to engage in sexual intercourse was increased to sixteen years by Ch. 4, § 1, Dakota Territorial Laws 1890, to eighteen years by Ch. 11, § 1, S.L. 1907, until it was decreased to sixteen years by Ch. 154, § 21, S.L. 1972. During the same period of time, sexual intercourse with a female under the age of ten years remained classified as rape in the first degree 3 until repealed by Ch. 169, § 8, S.L. 1975.

In recent years, the rationale and procedural and evidentiary rules applied to rape have been severely criticized. 4 Whether in response to such criticism or not, the South Dakota Legislature enacted Ch. 169, S.L. 1975 which radically changed the definition of rape. 5 The all important phrase "a person sixteen years of age or less shall be presumed incapable of consenting to such acts (of sexual penetration)" replaced the former prohibition against sexual intercourse with females under sixteen. This phrase must be interpreted as either a conclusive presumption, as urged by the state, or as a rebuttable presumption, as urged by the defendants.

The state contends that the presumption is merely a reaffirmance of the traditional definition of statutory rape, i. e., a female under the statutory age is conclusively presumed 6 to be incapable of consenting to sexual intercourse. This definition was discussed and rejected as inaccurate in Ex Parte Nesson, 1910, 25 S.D. 49, 125 N.W. 124:

"It is therefore clear that the so-called 'age of consent' statutes do not in any manner attempt by law to fix an age under which a female is mentally incapable of consent * * * but such statutes do fix an age below which her consent to an act of sexual intercourse is immaterial so far as it bears upon the guilt of the other party to the act. The common expression used by the courts 'that the female is conclusively presumed incapable of consenting to the act of sexual intercourse' is inaccurate. It would be more correct to say that the consent of the female is void (State v. West, 39 Minn. 321, 40 N.W. 249); that is, void as to the male."

A statutory presumption is a rule of evidence and must be carefully distinguished from statutory provisions which create substantive law, as the former provision had done. 7 It has been held that although the legislature may enact rules of evidence which create presumptions, in criminal cases the power is restricted.

"The legislature may enact laws declaring that, on proof of one fact, another fact may be inferred or presumed, and such enactments are constitutional, provided no constitutional right of accused is destroyed thereby, the presumption is subject to rebuttal, and there is some rational connection between the fact proved and the ultimate fact presumed." (emphasis supplied) 22A C.J.S. Criminal Law § 579, pp. 331-332.

See also 1 Torcia, Wharton's Criminal Evidence § 94; 29 Am.Jur.2d, Evidence, § 11; Jones on Evidence § 3.5; 1 Weinstein's Evidence, P 303(01), et seq.; Uniform Rules of Evidence (U.L.A.) Rule 303; Annots., 162 A.L.R. 495, 13 L.Ed.2d 1138, 23 L.Ed.2d 812. United States v. Gainey, 1965, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; Manley v. Georgia, 1929, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; Luria v. United States, 1913, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; Garcia v. People, 121 Colo. 130, 213 P.2d 387; State v. Kelly, 1944, 218 Minn. 247, 15 N.W.2d 554; State v. Kahler, 1970, Fla., 232 So.2d 166; State v. Haremza, 213 Kan. 201, 515 P.2d 1217; People v. Kirkpatrick, 1973, 32 N.Y.2d 17, 343 N.Y.S.2d 70, 295 N.E.2d 753; State v. Palmer, 2 Wash.App. 863, 471 P.2d 118; O'Neal v. State, 1972, Wyo., 498 P.2d 1232; State v. Hansen, 1972, Iowa, 203 N.W.2d 216; People v. Serra, 1974, 55 Mich.App. 514, 223 N.W.2d 28.

In addition to due process, equal protection, self-incrimination, and presumption of innocence problems, there exists a fundamental separation of powers question in conclusive statutory presumptions as stated in Professor Wigmore's treatise:

"The judicial function under the constitution is to apply the law in controverted cases; to apply the law necessarily involves the determination of the facts; to determine the facts necessarily involves the investigation of evidence as a basis for that determination. To forbid investigation is to forbid the exercise of an indestructible judicial function.

"Hence, to make a rule of conclusive evidence, compulsory upon the judiciary, is to attempt an infringement upon their exclusive province." 4 Wigmore, Evidence, § 1353 (Chadbourn rev. 1972), pp. 848-849.

See also Justice Black's dissent, United States v. Gainey, supra, 380 U.S. at 77, 85 S.Ct. 754.

Basic rules of statutory interpretation compel us to reach the conclusion that the presumption must be determined to be rebuttable. If an alternate construction of a statute would involve serious constitutional difficulties, then that interpretation should be rejected in favor of one which avoids such constitutional infirmities. First American Bank & Trust Company v. Ellwein, 1972, N.D., 198 N.W.2d 84; 2A Sutherland, Statutory Construction, § 45.11. Furthermore, it is a fundamental rule of construction that, if possible, effect must be given to all provisions within the statute, State v. Halladay, 1928, 52 S.D. 497, 219 N.W. 125, and when a prior statute is amended by an alteration of the terms, " 'it is to be presumed that it was the intent (of the legislature) to alter the meaning of the previous act in that particular.' " In re Dwyer, 1926, 49 S.D. 350, 207 N.W. 210. For this court to give full force and effect to all of the provisions of this statute, consistent with the state and federal constitutions, requires that the presumption be construed as rebuttable. 8

The state in its brief maintains that the legislature clearly did not intend such a "harsh result." We cannot accept that position. As indicated previously, the rape ...

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