State v. Holter
| Decision Date | 03 December 1912 |
| Citation | 30 S.D. 353,138 N.W. 953 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. CARL HOLTER, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Charles Mix County, SD
Affirmed
Charles P. Bates, Charles H. Bartlett, Perrett F. Gault
Attorneys for Appellant.
Royal C. Johnson, Attorney General
M. Harry O'Brien, Assistant Attorney General
Ambrose B. Beck, State's Attorney
French & Orvis, J. E. Tipton, G. M. Caster
Attorneys for Respondent.
Opinion filed Dec. 3, 1912; Rehearing granted Feb. 19, 1913
Upon an information duly filed by the state's attorney of Charles Mix county the defendant was tried and convicted of the crime of seduction under a promise of marriage, and from the judgment of conviction and order denying a new trial the defendant has appealed to this court.
It is disclosed by the evidence that the prosecutrix was a young lady of 22 years of age, and that the defendant was a young man residing in the vicinity of the family of the prosecutrix. It is claimed by the prosecutrix that on the evening of June 18, 1911, she was seduced by the defendant under a promise of marriage. There was evidence tending to prove that the defendant took the prosecutrix out riding occasionally, visited her at the home of her parents prior to the date of the alleged seduction, and that, after the alleged seduction, defendant continued his attentions, and that there were other acts of illicit intercourse between the defendant and the prosecutrix in July and August, and that by reason of her seduction she became enceinte.
On the trial the prosecutrix, called as a witness on the part of the state, testified that she was seduced by the defendant under promise of marriage on the evening of the 18th of June, 1911, and that the first act of illicit intercourse with the defendant was had at that time. She was then permitted to testify over the objection of the defendant that she had illicit intercourse will the defendant at three different times in July and August following. It is contended by the appellant that in the admission of this evidence as to subsequent acts of illicit intercourse the court committed error for which the judgment should be reversed and a new trial granted. It is contended by the prosecution, however, that this evidence was introduced and admitted for the purpose of corroborating the testimony of the prosecutrix, and was therefore admissible. We are inclined to take the view that the state is right in its contention. While there seems to be a conflict in the decisions on this question, we are of the opinion that the weight of authority is in favor of its admission. The appellant relies mainly upon the cases of People v. Clark, 33 Mich. 112, People v. Payne, 131 Mich. 474, 91 N.W. 739, and Pope v. State, 137 Ala. 56, 34 South. 840. The state relies mainly upon the case of State v. Robertson, 121 N.C. 551, 28 S.E. 59, and cases cited therein, and 13 Cyc. 1356. A number of other authorities were cited by the respective counsel, but, as the questions seem to have been raised in cases of rape or incest, we do not deem it necessary to cite them in this opinion. In State v. Robertson, supra; the learned Supreme Court of North Carolina held in the headnote as follows: "In a prosecution for seduction, it is competent for the state to show other acts of sexual intercourse between defendant and prosecutrix since the date of the act alleged."
And in the opinion that learned court says:
It is contended by the appellant that the court erred in admitting evidence over the objections of the defendant that the prosecutrix was in a family way, for the reason that it did not tend to corroborate the alleged seduction, but this contention is clearly untenable, as it does, in our opinion, tend to prove in connection with proof of previous chastity of the prosecutrix that she had been seduced by some one. While it might not tend to prove directly that such illicit intercourse was had under promise of marriage by the defendant, still it did tend to prove one fact necessary to be established, namely, illicit intercourse with some one. State v. Wickliff, 95 Iowa, 386, 64 N.W. 282; State v. Burns (Iowa) 78 N.W. 681; State v. Hughes, 106 Iowa 125, 76 N.W. 520, 68 Am.St.Rep. 288; Merrell v. State (Tex. Cr. App.) 70 S.W. 979; State v. Meister, 60 or 469, 120 Pac. 406; People v. Goodwin, 132 Cal. 368, 64 Pac. 561. In the analogous case of People v. Goodwin, supra, the court held as appears by the headnote, that:
"On a prosecution for seduction under promise of marriage, it was not error to allow the prosecutrix to testify that she got in a 'family way' by the defendant two months after the alleged seduction, as this evidence tended to show, in connection with evidence of her previous chastity, that she had been seduced prior to that time."
It will be observed from the statement of facts in that case that there was evidence tending to prove that the prosecutrix had became enceinte some two months after the first alleged act of illicit intercourse, and that similar evidence was given in the case at bar by the prosecutrix and corroborated by the testimony of the physician. It seems to be generally held that proof of pregnancy or the birth of a child is competent evidence as proof of illicit intercourse between the prosecutrix and some man, and tends to corroborate the prosecutrix in her statement as to illicit intercourse with some one. If, therefore, there was sufficient evidence to satisfy the jury that the accused was the party with whom the prosecutrix had the illicit intercourse, the jury was warranted in finding the defendant guilty, providing, of course, that the illicit intercourse with the defendant was had under promise of marriage.
It is further contended by the appellant that the court erred in permitting the prosecutrix to testify as to the motive which induced her to consent to sexual intercourse. On the trial she was asked the following question: "Would you have permitted him to have had sexual intercourse with you at that time except for his promise of marriage?" To this she answered over the objection of the defendant: "I would not." The objection made to the question by defendant's counsel in their brief is that it was calling for a conclusion of the witness, but it has been called to our attention by the respondent that on the trial the question was objected to "as being leading, suggestive, incompetent, and irrelevant." It will be noticed that it was not objected to on the ground that "it called for a conclusion of the witness," and, of course, the grounds of objection not presented to the trial court cannot be considered by this court. But assuming that the objection was properly made, we are of the opinion that the contention of counsel as to its admissibility is untenable. 35 Cyc. 1351, in its article on Seduction, says: "It has been held that the prosecutrix cannot testify to the motive which induced her to submit to intercourse with defendant, but the better opinion is to the contrary." As sustaining our position, see State v. Brinkhaus, 34 Minn. 285, 25 N.W. 642; Ferguson v. State, 71 Miss. 805, 15 South. 66, 42 Am.St.Rep. 492; State v. Bennett, 137 Iowa, 427, 110 N.W. 150; People v. Jensen, 66 Mich. 711, 33 N.W. 811; Armstrong v. People, 70 N.Y. 38; State v. Raynor, 145 N.C. 472, 59 S.E. 344.
It is further contended by the appellant that the court erred in permitting the prosecution to introduce evidence in rebuttal of defendant's evidence that properly belonged to the prosecution's case in chief. On the trial the evidence of the prosecutrix tended to prove the commission of the offense on the evening of the 18th of June, the time alleged in the information, and evidence was introduced on the part of the state tending to prove that the defendant was at the home of the prosecutrix that evening. The defendant as a part of his defense introduced testimony tending to prove that he was not at the home of the prosecutrix on the evening of the 18th of June. The state in rebuttal of this evidence on the part of the defense was permitted, over the objection of the defendant, to introduce further testimony tending to prove that the defendant was there at that time. It is contended on the part of the state that the defense interposed by the defendant was an alibi, an affirmative defense, and that such a defense must be affirmatively proven by the defendant, and that it was competent, therefore, for the state to introduce evidence rebutting the alibi, and, even if it was not admissible upon this ground, the admission or rejection of such evidence was within the sound judicial discretion of the trial court, and, unless there was an abuse of such discretion, the ruling of the trial court would not be reversed by this court. We are of the opinion that the evidence was admissible upon both grounds. It is true that the prosecution in making out its case in corroboration of the statements of the prosecutrix introduced evidence of two witnesses tending to prove that the defendant was at the home of the prosecutrix on the evening of June 18th, and this evidence constituted sufficient corroboration of the...
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