State v. Klein
| Decision Date | 27 July 1972 |
| Docket Number | Cr. N |
| Citation | 200 N.W.2d 288 |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Delmar D. KLEIN, Defendant and Appellant. o. 414. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A motion for new trial on grounds of insufficiency of the evidence is addressed to the sound, judicial discretion of the trial court. Such court's determination with respect to the sufficiency of the evidence will not be disturbed on appeal unless an abuse of discretion is shown.
2. Where the jury, after the case has been submitted to it, sends to the judge through the officer who has the jury in custody, a question concerning the meaning of a certain expression used by one of the witnesses, and the court sends back word that the jury itself must decide the meaning of such expression, no prejudice to the defendant is shown.
3. Although the communication in issue was not made in open court, in the presence of both counsel and the defendant, it did not contain anything which the jury could have misinterpreted or which could have improperly influenced the jury in the rendition of its verdict. Therefore, the error complained of was not prejudicial to the substantial rights of the defendant, and the motion for new trial on the ground of misconduct of the court was properly denied.
4. For reasons stated in the opinion, the order denying motion for new trial and the judgment of conviction are affirmed.
Helgi Johanneson, Atty. Gen. Bismarck, and Gordon O. Hoberg, State's Atty., Napoleon, for plaintiff and respondent State of North Dakota.
Richard B. Bear, Bismarck, for defendant and appellant.
The defendant, Delmar D. Klein, was convicted in the district court of Logan County of the crime of rape in the first degree. The information upon which he was tried charged him with having committed the crime of rape in the first degree in the manner following, to wit:
'That at the said time and place the said defendant did have sexual intercourse with a female, namely; (naming the complaining witness), who was not his wife and who at the time of the said intercourse, was under the age of eighteen (18) years, and that the defendant at the time of said act, was over the age of twenty-four (24) years.'
The jury returned a verdict of rape in the first degree. Thereafter, the defendant made a motion for new trial, which motion, after hearing, was denied by the trial court. Judgment was entered committing the defendant to the State penitentiary, and this appeal was taken from the judgment and from the order denying the motion for new trial.
The defendant raises two issues on this appeal:
1. Insufficiency of the evidence to sustain the verdict; and
2. Prejudicial error committed by the trial court in communicating with the jury after the jury had begun its deliberation, without notice to the defendant or his counsel.
Let us first consider the evidence. Was it sufficient to sustain the verdict?
The defendant strenuously asserts that there is no evidence of penetration and that the State has proved, at most, an attempt to commit rape.
Let us look at the record.
The complaining witness testified positively that there was penetration. She was asked whether the defendant's organ actually entered her, and her reply was: 'Yes, it did.'
The doctor who examined the complaining witness was called by the defendant. He testified that he had examined the complaining witness at about eight o'clock in the evening of June 7, 1970, approximately four hours after the alleged rape. He testified that at the time of his examination her vagina looked normal and that he found no swelling or abrasions, and that he found no evidence of sexual penetration. However, on cross-examination, he admitted that he could not state whether there had not been sexual intercourse and that he had no opinion on the matter except to say that he had not found evidence that there had been penetration. He further testified that he found bruises and contusions on the complainant's legs and body, and that he treated her for these.
Our statute relating to prosecution for rape does not require that the complaining witness be corroborated. A defendant may be convicted on the unsupported testimony of a complaining witness. State v. Johnson, 58 N.D. 832, 227 N.W. 560 (1929). In the case before us, however, the testimony of the complaining witness was corroborated. It was corroborated, for example, by the defendant's own witness, Schuchard, who walked into the bedroom while the defendant and the complaining witness were there, and who testified on cross-examination that the complainant's pants were unzipped and that she was attempting to close them as she left the room. It is true that there was no testimony that the complaining witness was forced, other than the testimony of the prosecutrix herself. But proof of force is not necessary where the victim is under the age of eighteen years. Even if the complaining witness had cooperated with the defendant in every way, his act of intercourse with her would, nevertheless, be rape. Sec. 12--30--01, subsec. 1, N.D.C.C.
The jury had before it for consideration the testimony of the defendant's witness, who testified that the defendant had stated, before entering the room with the victim, that he was going to 'make' her.
The record further shows that the prosecutrix left the house immediately after leaving the bedroom; that she was picked up on the road by a young man who took her to town, where they looked for a policeman; that when they could not find one, they went to a minister who called the police and the sheriff and made arrangements for the complaining witness to be taken to the hospital. The fact that she made complaint was properly shown in evidence. State v. Johnson, Supra.
In view of the fact that the complaining witness's testimony as to penetration need not be corroborated, we believe the evidence is sufficient to sustain the verdict. We have read the testimony carefully and we find that there is a direct conflict between the evidence of the State and that of the defendant. The question of guilt or innocence of the defendant therefore was for the jury. A motion for new trial on grounds of insufficiency of the evidence is addressed to the sound discretion of the trial court. Such court's determination with respect to the sufficiency of the evidence will not be disturbed on appeal unless an abuse of discretion is shown. State v. Shepard, 68 N.D. 143, 277 N.W. 315 (1938); State v. Smith, 153 N.W.2d 691 (N.D.1967).
We find no abuse of discretion on the part of the trial court in denying the motion for a new trial on grounds of insufficiency of the evidence.
The second issue raised by the defendant on this appeal is that the trial court committed prejudicial error in communicating with the jury, allegedly outside the presence of the defendant and his counsel and without notice to them, after the jury had begun its deliberations. The record discloses that after the jury had retired for deliberation, the foreman sent word to the judge, through the bailiff, that the jury wanted to be informed as to what the defendant's witness had meant by the expression 'I am going to put the make on that girl,' in quoting the defendant. The trial court stated that one of defendant's counsel was present at the time the request was made. Whether he was or was not present, the record is clear that the court sent word to the jury, through the bailiff, that the court could not answer the jury's inquiry and that the matter about which it inquired was a matter for the jury to determine.
Did the fact that the jury requested information on the meaning of an expression which the defendant allegedly had used, and which information the court did not give, constitute reversible error?
As a general rule, all communications between the trial judge and the jury, after a case has been submitted, must take place in open court and in the presence of or after notice to, the aprties and their counsel. 89 C.J.S. Trial § 473, p. 115.
North Dakota follows this general rule. Section 29--22--05 of the North Dakota Century Code provides:
Thus, under our law, whatever communication takes place between the jury and the court after the jury has retired for deliberation, such as a request by the jury to be informed on any point of law arising in the case or on any other matter, such communication must take place in open court with counsel for both parties and the defendant being present, or at least they...
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