State v. Keller, Cr. 219

• Decision Date: 28 March 1950
• Docket Number: Cr. 219
• Citation: 77 N.D. 165,42 N.W.2d 319
• Parties: STATE v. KELLER. STATE v. GLASER.
• Court: North Dakota Supreme Court

Page 319

42 N.W.2d 319

77 N.D. 165

STATE v. KELLER.

STATE v. GLASER.

Cr. 219.

Supreme Court of North Dakota.

March 28, 1950.

Syllabus by the Court.

Questions of the weight of evidence and the credibility of witnesses are for the jury, and a verdict rendered upon substantial, though contradicted, evidence will not be disturbed upon appeal.

Sinness & Duffy, Devils Lake, for appellants.

Wallace E. Warner, Attorney General John J. Tebelius, State's Atty., Harvey, for respondent.

BURKE, Judge.

Separate informations charging the defendants, Keller and Glaser, with the crime of rape in the first degree were filed in the District Court of Wells County. Since the charges against both defendants concerned a single transaction, the cases were consolidated for trial. Verdicts of guilty were returned against both defendants and judgment of conviction was entered against them. Their subsequent motion for a new trial was denied by the trial court and they have appealed both from the judgment and from the other denying a new trial. The only question raised upon the motion for a new trial and upon this appeal is that the evidence is insufficient to sustain the verdict of the jury.

At the time of the trial the prosecuting witness was a young woman, aged 19 years. She had been raised on a farm and had at times been employed as a waitress in Harvey and Minot. Upon the night of the occurrence of the events which led to the filing of the charges against these defendants, she had gone with friends to the Harvey Cafe for a midnight lunch. According to her version of the facts she became impatient at a delay in obtaining service and decided to leave for home. On her way out of the cafe she stopped at a booth in which the defendant, Robert Glaser, was sitting with some other young people with whom she was acquainted. One of them asked her to tell Gab Keller, if she saw him outside, to wait for them because they wanted to ride home with him. On leaving the cafe, she went first to the car of the young man, with whom she had come to the cafe, to get her purse. She then met a young man named Knutson who offered to take her home. She accepted his offer and handed him her purse to keep for her while she delivered the message to Keller. Then she went to the place where Keller's car was parked. She said, 'I looked in the car and I seen Gab in the back seat so I give him the message and he invited me to sit in the car. I refused. He took hold of my arm and pulled me into the car. * * * He had no more pulled me in than Bob Glaser came. He sat in the car. Gab said to take us for a ride. He did. As we started driving Gab said, 'Take us out of town.' They drove about a mile and a half out of town. Gab looked up and said, 'That is far enough' so Glaser immediately turned the car around and stopped while we were fighting in the back seat. * * * He grabbed hold of my left arm and held on to it until he seen Gab was getting the best of me. * * * I was getting so tired I couldn't hardly do anything when Glaser grabbed hold of my arm, I was so tired then, and him holding my arm, I couldn't do much with one arm. * * * He (Keller) shoved his shoulder under my chin and almost choked me to death. I grabbed hold of his hair and pushed him back, then he shoved his hands in my face and broke my glasses.' She stated that despite the fact that she was fighting against him, Keller completed an act of sexual intercourse with her contrary to her will and that she fought until she was so tired she couldn't do any more.

Her testimony is corroborated by the fact that she made immediate complaint to her sister upon arriving at the sister's home at about three o'clock in the morning and that she sought at once to make complaint to the proper authorities. As to what happened when she arrived at her sister's home the sister testified:

'Q. Where you awakened when she came in? A. Yes, she was crying so hard she woke me up crying. I got up and asked her what was the matter. She was all in * * * She said Gab Keller and Bob Glaser had her out and raped her.

'Q. Describe her appearance when you saw her. A. Her hair was all messed up and she had a scratch on her face and her face was kind of bloody and her skirt was twisted and wrinkled; her blouse was twisted and her blouse was unbuttoned * * * I told her to sit down and she said she was going to see George Letham. (A Harvey policeman)

'Q. Did you notice black and blue marks on her body? A. No, not at that time. She had scratches on her leg that she showed me the next day and a bump on her head, on the back of her head.

'Q. When did you notice bruises on her? A. The next morning.

'Q. Where were they? A. Her throat was all swollen up and on the back of her head, somewhere back here--I don't know exactly and she had scratches on her face and her slip was torn--she showed me that too and...