State v. Knapp

• Decision Date: 12 January 1914
• Citation: 144 N.W. 921,33 S.D. 177
• Parties: STATE v. KNAPP.
• Court: South Dakota Supreme Court

33 S.D. 177

144 N.W. 921

STATE

v.KNAPP.

Supreme Court of South Dakota.

Jan. 12, 1914.

Appeal from Circuit Court, Butte County; W. G. Rice, Judge.

Ladd A. Knapp was convicted of statutory rape, and appeals. Affirmed.Seward & Foley, of Belle Fourche, and Hayes & Heffron, of Deadwood, for appellant.

R. C. Johnson, Atty. Gen., M. Harry O'Brien, Asst. Atty. Gen., J. W. Malvin, State's Atty., and W. E. Benedict, Asst. State's Atty., all of Belle Fourche, for the State.

SMITH, J.

Appeal from circuit court of Butte county. Appellant was convicted of the crime of statutory rape. The state offered its evidence, and rested. Appellant offered no evidence.

[1]In his closing argument, the assistant state's attorney made remarks alleged to be prejudicial to appellant's legal rights, in that they called the attention of the jury to the fact that appellant did not take the witness stand in his own behalf. The remarks were objected to, the objections overruled, and proper exceptions taken. These are the only matters assigned as error. None of the evidence is in the record, and we do not have before us the evidentiary facts to which the remarks of the prosecuting attorney were addressed. Several statements were objected to, and are contained in the record; but we deem it unnecessary to quote or refer to all of them. The following language is assigned, and is commented on at length, as prejudicial error, and is alleged to constitute an indirect but effective attempt to call the attention of the jury to the fact that the accused did not testify: “She begs and begs him. Perhaps not that exact language, but to that effect. She begs him to have no further relations clandestinely and outside with this girl, or in any manner. Does he deny ever having forced his presence upon her? Not by-no. (Defendant's counsel objects.) Does he? Counsel states he did; but you cannot find it here in the record. On the contrary, when this woman pleads and asks him not to, he says, ‘I won't,’ to her, or something like that, which amounts to practically a confession that he had heretofore done things he ought not to have done, and promises not to do again.” The testimony of the witness or “woman” to which these remarks referred is not in the record. The precise question is whether the statement, “Does he deny having ever forced his presence upon her?” was, or could have been, understood by the jury as a suggestion that the accused had not taken the stand as a witness to deny that he had “forced his presence upon her.” The question might be more easily disposed of, had the testimony been brought before us. But, in the absence of such testimony, we can only resort to that which does appear in the record. The entire closing address of the assistant state's attorney is in the record, and it appears therefrom that immediately preceding the language quoted the attorney had said: “His duty was, if he wanted to meet that girl-to give her candy and money, and show her other favors to which, under other circumstances, there would be no objection-to do that at her home, with the consent of the parents, and knowledge, and did he do it? On the contrary, he did not do it; but, on the contrary, he persisted in putting his presence upon her to the extent that the stepmother of this girl, anxious for her well-being, knowing the little girl was out a little later than usual, happened to go to the door as the girl came there. She finds this man going away. She goes out and overhauls him, and has a talk with him as a mother would.” Then follows the language excepted to. Could the language assigned as error, taken in connection with that which preceded it, have been considered by a jury of intelligent men as an allusion to the failure of the defendant to testify at the trial. We think it clear that the language excepted to must have been understood by the jury only as a statement that appellant, when accused by the stepmother of improper conduct with the girl, failed to deny the acts she charged him with, and that it could not have been understood by them as a reference to anything other than what was charged and not denied in this conversation. Such a statement is not within the inhibition of the statute (section 361, Code Cr. Proc.) which says: “The person charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.” This court, in a number of cases, has been called upon to consider this statute.

[2]It is the settled law of this state that it is reversible error for the prosecution to call the attention of the jury in any manner to the fact that the accused has not testified. State v. Williams, 11 S. D. 64, 75 N. W. 815;State v. Garrington, 11 S. D. 178, 76 N. W. 326;State v. Bennett, 21 S. D. 396, 113 N. W. 78. In the latter case it was held that the error could not be cured by the attorney's withdrawal of the remark. State v. Kaufmann, 22 S. D. 433, 118 N. W. 337. In the latter case, although no direct allusions were made to the fact that the accused had not taken the witness stand, this court, upon a consideration of the whole address to the jury, reached the conclusion that it showed an intentional disregard of the law, by means of indirect allusions, to the fact that the accused did not testify. In a concurring opinion, Mr. Justice Corson says: “It is true that counsel did not in terms state to the jury that the defendant had not been called as a witness; but he so plainly indicated to them that such was the fact that the jury could not have misunderstood that their attention was called to this fact, as we must presume that the jury was composed of intelligent persons, who could readily understand the full import of the language used by the counsel when referring to the failure of the defendant's counsel to disprove the testimony offered on the part of the state, when it was in his power to have disproved it by the defendant's own testimony.”

[3]It would serve no useful purpose to quote other language of counsel excepted to and assigned...