State v. Kiehn

• Decision Date: 18 July 1972
• Docket Number: No. 10753,10753
• Citation: 86 S.D. 549,199 N.W.2d 594
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Carl R. KIEHN, Defendant and Appellant. . Re
• Court: South Dakota Supreme Court

Page 594

199 N.W.2d 594

86 S.D. 549

STATE of South Dakota, Plaintiff and Respondent, v. Carl R. KIEHN, Defendant and Appellant.

No. 10753.

Supreme Court of South Dakota.

Reargued Feb. 23, 1972.

Decided July 18, 1972.

As Amended on Denial of Rehearing Sug. 29, 1972.

Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Gordon Mydland, Atty. Gen., Pierre, was on the brief.

Donald J. Porter, Pierre, for defendant and appellant.

BIEGELMEIER, Judge (on reassignment).

Defendant appeals from his conviction of indecent molestation of his five-year-old daughter Robin. After having heard oral argument and before a decision was reached, due to a change in membership of the Court, reargument was ordered.

Defendant contends the court erred in refusing to instruct the jury on assault and battery, claiming they are included offenses. The crimes of assault and battery require force and violence. SDCL 22--18--1. SDCL 23--45--23 provides the jury may find a defendant 'guilty of any offense, the commission of which is necessarily included in that with which he is charged'. In State v. Pepka, 72 S.D. 503, 37 N.W.2d 189, the defendant was charged with attempted rape of a girl under 18 years of age; the court refused to submit the question of guilt of assault. The court wrote:

'Under the provisions of SDC 13.2801 the use of force or violence by the man is not an element of the crime of rape where the female is under the age of eighteen years. * * * We are of the opinion, therefore, that the crime of assault as defined by our law is not an offense 'necessarily included' in the crime charged by this information.'

Accord: State v. Barber, 83 S.D. 289, 158 N.W.2d 870. Similarly SDCL 22--22--7, which defines indecent molestation of a child, does not require force or violence as an element thereof as it reads:

'Indecent molestation of child.--Any person who shall willfully and unlawfully commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fifteen years, with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person, or of such child, shall be guilty of the crime of indecent molestation of a child.'

The trial judge in State v. Holt, 79 S.D. 50, 107 N.W.2d 732, instructed the jury that if they did not find defendant guilty of indecent molestation of a child under 15 years of age, it could find him guilty of assault or battery. The jury verdict was guilty as to the indecent molestation. The only question was the use of a dictionary as to the terms involved in the assault and battery charges and not of the propriety of the submission of the latter to the jury.

Defendant asks that we redefine insanity to reflect, as he states it, the realities of society today and substitute the 'Durham' rule, Durham v. United States, ¹ or the A.L.I. Model Penal Code proposal. See 21 Am.Jur.2d, Criminal Law, § 38. Our state has adopted the 'M'Naghten' or right or wrong test by statute, SDCL 22--3--1. We have been asked to change or modify it before (see State v. Waugh, 80 S.D. 503, 127 N.W.2d 429, and State v. Kingston, 84 S.D. 578, 174 N.W.2d 636), but have declined that course. Our answer in the cited cases reflects our views and we adhere to them.

Defendant's counsel objected to a question asked Robin's mother, 'And what did she (Robin) say?', on the ground that it was hearsay. The objection was overruled and the witness answered: 'She had told me that her dad had took her panties off and had laid on her.'

It appeared defendant had taken Robin out in the car during the morning, and after he brought her home the mother noticed the bloody condition of Robin's panties and legs. The mother called the police and Robin was taken to the hospital; while there she asked Robin what happened. The answer was as above quoted. This was around noon and about two hours after the claimed molestation.

'Where the victim is of an age to render improbable that her utterance was deliberate and its effect premeditated the utterance need not be so nearly contemporaneous with the act as in the case of an older person.' State v. McFall, 75 S.D. 630, 71 N.W.2d 299.

See also State v. Percy, 81 S.D. 519, 137 N.W.2d 888. Coming into the record as it did the trial judge did not err in overruling the objection of defendant's counsel. Further, another witness testified without objection of the statement by Robin. See State v. Hermandson, et al., 84 S.D. 208, 169 N.W.2d 255, and Alberts v. Mutual Serv. Cas. Ins. Co., 80 S.D. 303, 123 N.W.2d 96.

Error is claimed in the admission in evidence of some items found in the family car when Robin was driven to the hospital. This was within three hours of the time defendant had used it that morning. The objection was to foundation, and there is no evidence of any change or alteration of the items during the elapsed time. The trial judge rules on its competency; its credibility is for the jury. State v. Christmas, 83 S.D. 506, 162 N.W.2d 125.

Defendant asserts the confession introduced in evidence was not voluntary; the court erred in allowed it to go to the jury and further erred by not allowing the jury to decide on its voluntariness. The trial judge took evidence in camera where extensive direct and cross-examination of officer Brancel took place. That evidence covers 80 pages of the transcript. After argument the trial judge announced:

'Very well, it will be the Court's ruling that the confession and voluntary statement contained in the State's Exhibit now marked Exhibit 2 under date of April 30, 1969, is a voluntary confession and may be used in the trial of this case and admitted into evidence for consideration by the jury as to its weight and credibility together with all the other facts and circumstances.'

Further testimony before the jury of this officer adds over 50 pages to the subject, whereupon the typed and singed confession of defendant, with printed Miranda warnings at the top, was admitted in evidence. It is clear the trial judge considered and followed the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decision and those of this court applicable.

On the claim that the confession was inadmissible for the reason it was not voluntary, defendant quotes from the Blackburn v. Alabama, 1960, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, opinion by Chief Justice Warren as follows:

"the evidence indisputably establishes the strongest probability that (defendant) Blackburn was insane and incompetent at the time he allegedly confessed."

A 24-year-old Negro, Blackburn had a record showing he suffered from a lengthy siege of mental illness, was permanently disabled by a psychosis, and was '100 percent incompetent'. A local court-appointed medical board declared he was insane at the time of the crime and original trial date. The opinion declares 'the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed', and a basic sense of justice is affronted by incarcerating a person 'upon the basis of a statement he made while insane'. It will be seen Blackburn is not apposite, as the trial judge found defendant mentally competent as to the confession, the jury as to the criminal act and the evidence sustains both findings. The court in Blackburn said 'the evidence (of insanity) introduced prior to the admission of the confession was ample to establish its involuntariness'. It was therefore unnecessary to consider any further evidence thereafter introduced on that subject. The opinion then, by what may be dictum, proceeds to answer the question of what evidence the judge must consider in determining the voluntary or involuntary nature of the confession. Rejecting the notion that it is predicated solely on the evidence introduced by defendant before admission of the confession, the opinion continues: 'Where the involuntariness of a confession is Conclusively demonstrated at any stage of a trial' (emphasis supplied), the conviction does not meet due process standards without exclusion of the confession. The evidence here is not the kind the Supreme Court described.

State v. Thundershield, 1968, 83 S.D. 414, 160 N.W.2d 408, where the question is fully discussed and many cases are cited, adopted the orthodox rule as to determination of admissibility of confessions. The opinion sets out quite in detail the procedure for that determination as follows:

'When a confession or an incriminating statement allegedly made by the accused is offered by the prosecution and objected to, the state has the burden of proving beyond a reasonable doubt the same was freely and...