State v. De Marias

• Decision Date: 03 April 1911
• Citation: State v. De Marias, 27 S.D. 303, 130 N.W. 782 (S.D. 1911)
• Parties: STATE v. DE MARIAS.
• Court: South Dakota Supreme Court

27 S.D. 303

130 N.W. 782

STATE

v.DE MARIAS.

Supreme Court of South Dakota.

April 3, 1911.

Appeal from Circuit Court, Roberts County; Frank McNulty, Judge.

John De Marias was convicted of statutory rape, and he appeals. Reversed, and new trial ordered.J. O. Andrews and Howard G. Fuller, for appellant.

Royal C. Johnson, Atty. Gen., M. Harry O'Brien, Asst. Atty. Gen., and J. J. Batterton, State's Atty., for the State.

SMITH, P. J.

Defendant was convicted in the circuit court of Roberts county on January 4, 1910, upon information charging the crime of statutory rape. This appeal is from an order overruling a motion for a new trial on the ground of newly discovered evidence. The motion alleges newly discovered evidence material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.

At the trial the act was admitted by the accused. The sole issue was as to the age of the prosecuting witness, who was alleged to be under the age of 18 years. The crime was charged to have been committed on, to wit, the 16th day of November, 1908. At the trial Cora Johnson, the prosecuting witness, testified she was 17 years old the 27th day of June, 1908; David Johnson, her father, testified that she was born in 1892, and was 18 years old at the time of the trial; George Johnson, her brother, that she was born after the opening of the reservation in 1892; Mary Johnson, her mother, that Cora was 16 years old at the time of the trial; that she was born the same year the reservation was opened. A number of witnesses called on behalf of defendant testified to the effect that the prosecuting witness was more than 18 years old at the time of the alleged offense. Numerous discrepancies appear in the testimony of the witnesses, both of the state and of the accused.

Upon this state of the record the accused, on the 4th day of February, 1910, presented his motion for a new trial on the ground of newly discovered evidence, based upon a number of affidavits, in substance as follows: David J. Robertson swore that he was a resident of Roberts county; lived on the Sisseton or Lake Traverse reservation for more than 25 years; reads, writes, and speaks both the English and Dakota languages; is a minister of and connected with the Episcopal church and mission work, in charge of the Episcopal mission, near Lake Traverse, on the Dakota side of the lake; that he was well acquainted with David Johnson and his family and the daughter, Cora, whom he has known nearly all her life; that the family are related to affiant; that on June 14, 1891, said Cora Johnson was brought to the mission church by her parents for baptism; that Rev. John Robinson of Sisseton Agency, who presided over all the Episcopal missions of this reservation, was at the mission church on that day, and performed the rites and ceremonies in the baptism of Cora Johnson, and recorded the fact in a book kept for that purpose, and also the date of baptism, and the name of the person baptized; that the English name entered in said record was Cora Johnson, and the date was June 14, 1891; that aside from the entry in said book affiant has independent recollection of said baptism; that Cora Johnson at that time was a little girl of considerable size, learning to talk, and could walk unaided, and that in his opinion she was about one year old at that time; that affiant was not at the trial in the month of January, but afterwards heard that the accused was found guilty by the jury, and was convicted because Cora was under 18 years of age at the time of the act in November, 1908; that affiant believed there must be some mistake, because he knew that Cora Johnson was more than 18 years of age at the time of the act in November, 1908, and so informed some persons; that prior to said trial he had not talked with defendant or his attorneys about this matter, and did not know exactly what the trouble was between Cora Johnson and the defendant, and hence had not disclosed his knowledge of said facts to any one before the trial and verdict; that affiant has the book of record of the baptism, and can produce it, and will do so if a new trial is granted.

The affiant, John Robinson, swears that he is a minister of the gospel and has charge of the Episcopal mission and church, and has presided over said mission for more than 28 years last past. The further allegations in his affidavit are exactly and precisely corroborative of the statements of David J. Robertson in all respects, and he also swears that he did not mention to any person the fact of said baptism prior to the trial of the accused, and that he never talked with defendant or his attorneys, or said anything about the baptism until about the latter part of January, 1910, when he mentioned the facts to, or in the presence of, one John Jacobson.

The affidavit of David Johnson, father of Cora, was also presented, containing statements of facts tending to show that his testimony as to his...