State v. Klueber
| Decision Date | 09 February 1965 |
| Docket Number | No. 10129,10129 |
| Citation | 132 N.W.2d 847,81 S.D. 223 |
| Court | South Dakota Supreme Court |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Roland J. KLUEBER, Jr., Defendant and Appellant. |
Charles Lacey, Sioux Falls, Dave L. MacFarlane, Montrose, for defendant and appellant.
Frank L. Farrar Atty. Gen., Robert A. Miller, asst. Atty. Gen., Pierre, Clinton J. Nagel, McCook County State's Atty., Salem, for plaintiff and respondent.
The jury returned its verdict finding defendant guilty of indecent molestation of a child of the age of 12 years. The judgment from which he appeals sentenced him to three years imprisonment in the State Penitentiary.
The statute under which he was charged, SDC 1960 Supp. 13.1727, so far as here material, provideds that:
'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.'
In its instructions to the jury the trial court stated that it would constitute no defense to the offense charged that the defendant did not know the age of the prosecuting witness or did not know she was under the age of 15 years at the time of the alleged offense. Defendant's exception to this statement raises the first question presented on this appeal.
In summary, his contention in this area is that it is a necessary element of the offense that the defendant have knowledge that the child involved was under 15 years of age. He argues that if defendant did not have such knowledge it cannot be said that he committed the act willfully. We do not share his view.
In so far as our criminal code is concerned the legislature in SDC 13.0102 (1)(e) said: "Willfully' implies simply a purpose or willingness to commit the act or the omission referred to. It does not require any intent to violate law * * *.' The intent with which the act must have been committed is specified in the statute defining the crime as that 'of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person, or of such child * * *'. The court instructed the jury in the language of SDC 1960 Supp. 13.1727 and SDC 13.0102(1)(e). This fully and fairly informed the jury as to the necessity of proof of both the intention and willfulness required to constitute the crime. People v. Kearney, 20 Cal.2d 435, 126 P.2d 612.
It is to be noted that in defining the crime our legislature did not prescribe that it was necessary to the offense that the act be committed knowingly. When the word knowingly is omitted in the statutory specifications of a public offense, and no words of similar import are used, good faith is unimportant and the absence of criminal intent no excuse. If a statute makes an act criminal irrespective of guilty knowledge then, ignorance of fact, no matter how sincere, is no defense. State v. Sasse, 6 S.D. 212, 60 N.W. 853, 55 Am.St.Rep. 834; State v. Dorman, 9 S.D. 528, 70 N.W. 848; State v. Whitman, 52 S.D. 91, 216 N.W. 858 and State v. Schull, 66 S.D. 102, 279 N.W. 241, 115 A.L.R. 1226.
Our cases of State v. Bradley, 15 S.D. 148, 87 N.W. 590 and State v. Morton, 38 S.D. 504, 162 N.W. 155 are not in opposition to this rule as urged by the defendant. Rather, they specifically recognize the rule, but hold it inapplicable because the statutes involved are not of the kind with which the rule is concerned. In our view knowledge that the child was under the statutory age at the time of the offense is not an essential element or ingredient of the crime. Accordingly, we hold the challenged instruction to be proper.
As supporting his position defendant relies heavily on People v. Bailey, 341 Mich. 592, 67 N.W.2d 785. That case holds that knowledge that the boy was under 15 years of age is essential to the commission of the crime of knowingly and willfully debauching the person and depraving the morals of any boy under the age of 15 years. In committing the crime there involved it had to be done knowingly and willfully. Clearly the court's holding is based on the legislature's use of the word knowingly in the definition of the crime. Our statutory situation is the reverse of that.
In Commonwealth v. Sarricks, 161 Pa. Super. 577, 56 A.2d 323 involving the crime of contributing to the delinquency of a female child under the age of 18 years, the accused defended on the grounds that the child involved told him that she was over 18 and that he believed her. Accordingly, he claimed that the jury should have been instructed to acquit him if it found his belief to be reasonable and bona fide. The court approved the refusal to so instruct saying 'The appellant was not entitled to such a charge for the offense was malum prohibitum only, and defendant's motive, intent, reasonableness or good faith were not ingredients of the offense'. The omission of the word knowingly in the definition of the crime was considered decisive of the question.
The state had caused the prosecuting witness to be examined physically by a medical doctor shortly after the occurrence in question. A written report of that was made to the state and a copy furnished the accused. The defendant interpreted it as showing that she was not a virgin and had not been such for a long time and claimed that feelings of guilt on account of this would affect her credibility. On the basis of this at the outset of the trial he requested the court to require her to submit to a psychiatric examination for the purpose of determining her credibility as a witness. The denial of his request is presented on this appeal.
Eminent authorities in this field support defendant's position. Wigmore in his Treatise on Evidence, 2rd Ed., Sec. 924a recommends that in all cases charging sex offenses the complaining witness should be examined before trial by competent psychiatrists as to her probable credibility and such testimony made available to the court. The American Bar Association's Committee on the Improvement of the Law of Evidence in its report for 1937-38 reported favorably on such proposal and suggested that the examiner's report be accepted in evidence. These authorities feel that the complaining witnesses in such cases, especially young girls, suffer from mental or moral delusions or tendencies causing distortion of the imagination in sex cases. They point out that because of this many persons have been wrongfully convicted of sex offenses on the unsupported testimony of girls so affected. Wigmore claims that judging merely from the reported appellate cases 'one must infer that many innocent men have gone to prison because of tales whose falsities could not be exposed.'
That such miscarriages of justice have occurred must be admitted. The writings of those who have made the problem a matter of studied concern support this conclusion. See authorities quoted in Wigmore Sec. 924a. However, we are not persuaded that it is necessary or advisable for courts to go to the extreme suggested by Dean Wigmore to protect against the evil. Of course if it is done by statute as suggested by him in Sec. 924b, that is another matter.
Our problem here, limited to complaining witnesses in sex offenses, is to a degree, but a segment within the larger field of such examinations of witnesses generally to determine their credibility. However, in this case we are not called on to announce the rule that should govern in the larger field. To read this opinion as indicating our views as to what that rule should be is...
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