State v. Lightheart, 22874.

• Decision Date: 21 July 1922
• Docket Number: No. 22874.,22874.
• Citation: 189 N.W. 408,153 Minn. 40
• Parties: STATE v. LIGHTHEART.
• Court: Minnesota Supreme Court

153 Minn. 40

189 N.W. 408

STATE

v.LIGHTHEART.

No. 22874.

Supreme Court of Minnesota.

July 21, 1922.

Appeal from District Court, St. Louis County; H. A. Dancer, Judge.

Lanson Lightheart was convicted of statutory rape, and he appeals. Affirmed.

Syllabus by the Court

The dismissal of an indictment by order of the court on motion of the county attorney for a clerical defect appearing on its face, after a demurrer has been interposed by defendant and not yet decided by the court, is not equivalent to an order sustaining the demurrer, within the meaning and purpose of Gen. St. 1913, §§ 9186, 9187.

In that situation an order of resubmission to another grand jury is unnecessary, and a second indictment for the same crime returned prior to the dismissal is valid.

On the facts stated in the opinion defendant was not entitled to a dismissal of the second indictment for the failure of the state to bring the case to trial at the time required by Gen. St. 1913, § 8510. State v. Le Flohic, 127 Minn. 505, 150 N. W. 171, followed and applied.

The state relied for conviction on the act alleged to have been committed on the date charged in the indictment, and there was no error in the refusal of the court to require an express election between that and other earlier acts shown by the evidence, but not relied upon for conviction.

It is discretionary with the trial court to give to the jury the cautionary instruction that a charge of rape is easily made and hard to be defendant against however innocent the accused may be, in the exercise of which there was here no error.

The evidence supports the verdict, and the record presents no reversible error.

In prosecution for statutory rape, defendant may be convicted on the uncorroborated testimony of the prosecutrix. John & John D. Jenswold, of Duluth, for appellant.

C. L. Hilton, Atty. Gen., Warren E. Greene, Co. Atty., and S. J. Searls, Third Asst. Co. Atty., both of Duluth, for the State.

BROWN, C. J.

Appeal by defendant from a judgment of the district court of St. Louis county convicting him of the charge of statutory rape.

By various assignments of error defendant contends: (1) That the trial court erred in denying his motion to dismiss the indictment, and in overruling his special plea of a former acquittal; (2) that the court erred in denying his motion to dismiss the prosecution for the failure of the state to bring the indictment to trial within the time prescribed by G. S. 1913, § 8510; (3) that there was error in the refusal of the court to require the state to elect upon which date reliance would be had for conviction; (4) that there was error in the instructions and refusals to instruct the jury; and (5) that the evidence is insufficient to sustain the verdict of guilty.

1. The date of the alleged crime was August 2, 1919. On May 7, 1920, defendant was indicted and charged with the commission thereof on August 2, 1920. On arraignment a plea of not guilty was interposed, but on July 27th, following, defendant was permitted to withdraw the plea and to file a general demurrer to the indictment. This was occasioned by the discovery that the indictment, dated and returned to the court on May 7, 1920, charged the offense to have been committed on August 2, 1920, some two months subsequent to the date of the indictment; a manifest error in the designation of the year. The demurrer to the indictment was argued and the matter submitted and take under advisement by the court. Before the court had decided the question thus submitted, and on November 5, 1920, the indictment involved on this appeal was returned by the grand jury, therein charging the same offense, and as having been committed on August 2, 1919, the correct date. Thereafter, on November 15, 1920, and before the demurrer to the first indictment had been decided, that indictment was on motion of the county attorney dismissed by order of the court on the ground, as stated by the court, ‘that a technical defect appears on the face of the indictment.’ Defendant subsequently moved the court to dismiss the prosecution under the present indictment on the theory and claim that the dismissal of the first indictment, without a ruling upon the demurrer, was in legal effect an acquittal of the charge made against him, and under G. S. 1913, §§ 9186, 9187, a bar to a second prosecution, since there was no order resubmitting the matter to another grand jury. The motion, treated by the court as a special plea, was overruled, to which defendant duly excepted. There was no order of resubmission to another grand jury; in fact, the second indictment was returned prior to the date of the dismissal of the first.

The contention of defendant that the dismissal of the first indictment was equivalent to an order sustaining the demurrer, therefore, under the statute cited, in legal effect an acquittal, is disposed of adversely to him by the decision in State v. Peterson, 61 Minn. 73, 63 N. W. 171,28 L. R. A. 324. While the dismissal involved in that case preceded the argument and submission of the questions raised by the demurrer, that is not deemed a differentiating fact, and the decision there rendered is controlling upon that feature of the case at bar. But aside from that the dismissal was not upon the merits, but for a clerical defect appearing upon the face of the indictment, therefore not a bar to a second prosecution. G. S. 1913, § 9193. In that situation an order of resubmission to the same or another grand jury is not necessary. G. S. 1913, §§ 9186 and 9187, relied upon by defendant cannot, as held in the Peterson Case, be extended and made to apply to cases other than those expressly included therein. And since under that decision the dismissal was not equivalent to an order sustaining the demurrer the requirements thereof do not apply.

2. The cause came on for trial on October 14, 1921, some 11 months after the return of the indictment. It was on the calendar for two or three terms of court after it was so returned, and was continued from term to term with other cases not reached or called for trial. The continuances came about automatically and not on the motion or application of the state, and for the most part by reason of the interlocking of the terms of court, one following at a specified date though the work on preceding term calendars was unfinished; the cases undisposed of being carried to the...