State v. Lambert

• Decision Date: 01 September 1932
• Docket Number: No. 7396.,7396.
• Citation: 244 N.W. 118,60 S.D. 172
• Parties: STATE v. LAMBERT.
• Court: South Dakota Supreme Court

60 S.D. 172

244 N.W. 118

STATE

v.LAMBERT.

No. 7396.

Supreme Court of South Dakota.

September 1, 1932.

Appeal from Circuit Court, Potter County; J. H. Bottum, Judge.

Irvin Lambert was convicted of rape in the first degree. From an order granting a new trial, the State appeals.

Affirmed.M. Q. Sharpe, Atty. Gen., and Frank S. Tait, State's Atty., of Gettysburg, for the State.

Jacobs & Bottum, of Faulkton, for respondent.

CAMPBELL, P. J.

Defendant, a young man about 25 years of age, was charged with rape in the first degree (subdivision 3, § 4092, R. C. 1919; section 4095, R. C. 1919); the information alleging that he accomplished an act of sexual intercourse with a female several months beyond the age of 18 years, forcibly overcoming her resistance thereto. The jury returned a verdict of guilty, whereupon defendant moved for a new trial, which was granted by the court below. The order granting a new trial specified as the grounds thereof as follows:

“1. The evidence is insufficient to justify the verdict and said verdict is contrary to the law.

“2. The evidence clearly shows that the prosecutrix failed to use the means of resistance available to her in resisting the defendant.

“3. The evidence clearly shows, that under the circumstances the prosecutrix failed to resist to the extent of her ability so to do.

“4. That the only testimony showing the commission of the crime of rape by the defendant is the testimony of the prosecuting witness. That according to her testimony after an assault had been made and while the same was in progress and after the intention to commit said offense was apparent. John Meyers and Agatha Herman came to the door of car and opened the same. That there was ample opportunity for the prosecutrix to have made an outcry and prevented the commission of said offense. That she failed to make an outcry or complaint to them and allowed them to leave the car.

“5. The testimony of prosecutrix is unconvincing, doubtful and unsatisfactory.”

From the order granting a new trial, the state has appealed.

This court has given its full approval (State v. Dachtler, 43 S. D. 407, 179 N. W. 653) to the often quoted statement of Sir Mathew Hale (1 Hist. Plac. Cor. 635) that a charge of this nature “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused though never so innocent.”

[1][2] There was in this case a square conflict between the testimony of the prosecutrix and the defendant. She claimed completed forcible defilement, while he denied any act of intercourse,...