State v. Johnson

• Decision Date: 10 December 1929
• Docket Number: No. 44.,44.
• Citation: 58 N.D. 832,227 N.W. 560
• Parties: STATE v. JOHNSON.
• Court: North Dakota Supreme Court

58 N.D. 832

227 N.W. 560

STATE

v.JOHNSON.

No. 44.

Supreme Court of North Dakota.

Oct. 24, 1929.

Rehearing Denied Dec. 10, 1929.

Syllabus by the Court.

In a prosecution for rape, the fact that the prosecutrix made complaint after the commission of the alleged offense may be shown in evidence, but the details of the offense as related to another by the prosecutrix are not admissible. In the instant case there was no error in admitting evidence that complaint was made, as the details were excluded.

The information in a criminal prosecution is a concise statement of the charge against the defendant, and it is not error for the trial judge to read it to the jury as a basis for his instructions, when he instructs the jury that “the information is not evidence, but simply the written charge of the state, upon which the case is brought to trial, for the evidence, the facts, you must get from the witnesses upon the stand and the exhibits offered and received in evidence.”

Refusing to admit a letter in evidence after portions of the same relied on by appellant as material had been read in the presence of the jury, and witnesses had been examined in relation thereto, was not error, as such material portions were in evidence.

Under section 9563, Comp. Laws 1913, rape can only be “accomplished with a female not the wife of the perpetrator.” Nonmarriage is a part of the statutory definition of the crimes, and must be alleged in the information and proved at the trial to the satisfaction of the jury beyond a reasonable doubt, but, like any other fact, it may be proved by facts and circumstances from which the conclusion of nonmarriage may be drawn.

The statutes of this state relating to prosecutions for the crime of rape do not require that the complaining witness be corroborated, and a defendant may be convicted on the unsupported testimony of the complaining witness. The credibility of the witnesses and the guilt or innocence of the defendant are all questions of fact for the jury, and, when there is a direct conflict in the evidence, the verdict of the jury prevails.

Appeal from District Court, Walsh County; C. W. Buttz, Judge.

Melvin Johnson was convicted of rape in the second degree, and he appeals. Affirmed.

De Puy, Greenburg & De Puy, of Grafton, for appellant.

James Morris, Atty. Gen., and T. I. Dahl, State's Atty., of Grafton, for the State.

BURKE, C. J.

On the 7th day of December, 1928, the defendant, Melvin Johnson, was convicted of the crime of rape in the second degree; thereafter, and on the 16th day of March 1929, a motion for a new trial was denied, and, from an order overruling the motion and from the judgment entered upon the verdict of the jury, the defendant appeals.

[1] It is the contention of the appellant that the court erred in the admission of certain testimony under objection at the trial, as follows: “Ques. And you asked her who was to blame for it?” “Ques. And did she tell you?” These questions were asked of the witness Anna Grendahl, and, when objection was made, the court instructed the witness to answer by “Yes” or “No.” She answered “Yes” to each question. When the witness was asked to tell who the prosecuting witness said was to blame, the court sustained an objection. It is well settled that the fact that the complaining witness made complaint after the commission of the offense may be admitted evidence-that is, the fact that complaint was made may be shown, but the details cannot be given-and, as the details were excluded in this case, there was no error. Besides there could be no prejudice, for the reason that it was preliminary to the testimony of this same witness Anna Grendahl, who immediately following this testimony further testified without objection to a conversation she had with the defendant, Melvin Johnson, as follows:

“Did you have any conversation with Melvin Johnson as to him being the cause of the condition? (Bella Grendahl's condition.) Ans. I went up there one Sunday and talked to him.

Ques. Did you at that time accuse him of being the cause of her condition? Ans. Well, I told him that she figured that way.

Ques. And what did he say? Ans. He said you couldn't exactly blame him for it, because she had been out with so many other.”

This testimony is corroborated by the defendant, as follows:

“Did you make any statements to Anna Grendahl that you couldn't be blamed, because there were others that had been out with her? Ans. Yes, sir.

Ques. Did you tell her that others had been out with her that were to blame for her condition? Ans. I told her she had been out with others too, I supposed.”

After the admission of this competent evidence, certainly the evidence objected to was harmless.

[3] Second. The court erred in sustaining the state's objection to the introduction of Exhibit A. Exhibit A is a letter written by the complaining witness, Bell Grendahl, to the defendant, Melvin Johnson. This letter should have been admitted in evidence, as it shows the friendly relations of the parties, and reads as follows:

“Park River, N. D. October 25, 1927.

Dear Melvin: Thought I would write you a few lines as I hear you are still around here. Heard Dad said, you was here Sunday evening after I left. I am sorry I was not home. I hear there is a Halloween dance at Edinburgh on Friday, suppose you will be going. I would like to go, but I have no way yet of getting there. Suppose you wouldn't come down and get me. That is, if you intend to go. If not please let me know some way. I ain't been to a dance since that night in P. R. and I don't care so much either. I guess I will quit my scribbling as it is time to get to work.

As ever, Bell Grendahl.”

There is nothing in this letter that could possibly help the defendant, except the date, October 25, 1927, and the statement, “I ain't been to a dance since that night in P. R.”, and both the date and the statement are in the record, in the cross-examination of the witness Bell Grendahl, in which she testified the date October 25, 1927, was the correct date, and that the letter contained the statement, “I ain't been to a dance since that night in Park River.” The purpose of offering the letter was, no doubt, to contradict the testimony of the witness that she wrote the letter on the 15th of October. The defendant testified that he received the letter on the 26th of October. In his cross-examination he says, in reference to the letter, “She wrote and wanted me to take her to a dance in Edinburgh on the 28th.” He is asked the question, “You heard Mr. De Puy reading from the letter in question, in which Bell said, she had not been to a dance since the Park River dance?” And, while he answered, “No, sir,” that statement from the letter is again before the jury without objection. He further states that the main thing that he remembers is the date of the letter. So that all that part of the letter that might in any way help the defendant was in the record without objection, and was no doubt argued to the jury as contradicting the prosecuting witness' testimony that she wrote the letter on the 15th of October.

[2] Third. The court erred in reading the information to the jury. This was not error, as the court specifically instructed the jury “that the information was not evidence, but was simply the written charge of the state upon which the case is brought to trial in this court, for the evidence, the facts, you must get them from the witnesses upon the witness stand, and from the exhibits offered and received in evidence.” The definitions of the technical terms in the information as given to the jury by the court were correct in so far as they are applicable to this case.

[4] Fourth. The most serious question in the case is whether there is sufficient evidence that the prosecutrix was not the wife of the defendant. Under the statutes of this state (Comp. Laws 1913, § 9563), rape can only be “accomplished with a female not the wife of the perpetrator.” It is a part of the statutory definition, and must be alleged in the information and proven at the trial. It is alleged in the information in this case, and the jury was instructed by the trial judge, that it was one of the material allegations of the complaint which must be proven to the satisfaction of the jury beyond a reasonable doubt; and the question is whether the proof is sufficient to sustain the verdict of the jury.

In People v. Gonzalez, 6 Cal. App. 255, 91 P. 1013, it was held, that the indirect evidence of nonmarriage in that case was insufficient, although there was evidence that the female was only 11 years of age.

In People v. Jailles, 146 Cal. 301, 79 P. 965, 967, the trial court omitted to state to the jury on the first count that it was necessary to show that the prosecutrix was not the wife of the defendant. The court said, “The omission * * * was not prejudicial. There was not the slightest pretense that the prosecutrix was the wife of the defendant. The defendant himself testified that he did not know her name, that he had no acquaintance with her, and that he” had never seen “her before that night. Under the circumstances * * * it could not be held to be prejudicial error for the court to assume in its instructions that she was not defendant's wife.”

In the case of Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849, the Texas court held that it must be shown that the prosecutrix was not the wife of the defendant by direct...