State v. La Mont

• Citation: 120 N.W. 1104,23 S.D. 174
• Parties: STATE v. LA MONT.
• Decision Date: 05 May 1909
• Court: Supreme Court of South Dakota

120 N.W. 1104

23 S.D. 174

STATE v. LA MONT.

Supreme Court of South Dakota

May 5, 1909

Appeal from Circuit Court, Clark County.

Boyd H La Mont was convicted of rape, and appeals from the judgment and an order denying a new trial. Reversed, and new trial ordered.

S. A Keenan and Seward & McFarland, for appellant.

S. W Clark, Atty. Gen., C. D. Sterling, Asst. Atty. Gen., and W J. Jacobs, State's Atty., for the State.

McCOY J.

This case comes before us on appeal from the circuit court of Clark county. The plaintiff in error was informed against, tried, and convicted for the crime of rape. Over 100 errors are assigned by counsel for plaintiff in error, but we will only refer to such errors as are hereinafter mentioned. The others, for most part, involve questions of law heretofore settled by this court, and which we deem unnecessary to consider in rendering this decision.

The plaintiff in error, whom we shall hereafter designate as the defendant, interposed a demurrer to the information upon the ground that the facts stated therein do not constitute a public offense. The information, omitting formal parts, is as follows: "That said Boyd La Mont, on or about the 2d day of May, 1907, at the township of Rosedale, in the county of Clark and state of South Dakota, did in and upon one Lina La Mont, then and there being a female under the age of 16 years, and not the wife of the said Boyd La Mont, with force and violence, and by threats of immediate and great bodily harm, accompanied by the apparent power of execution, and against her will and resistance, willfully and unlawfully and feloniously make an assault upon her, the said Lina La Mont, and with force and violence, and by threats of immediate and great bodily harm, accompanied by the apparent power of execution, and against her will and resistance, did then and there willfully, unlawfully, and feloniously ravish and carnally know her, the said Lina La Mont, he, the said Boyd La Mont, being then and there a male person over the age of 14 years, and against the form of the statute," etc. The defendant contends that the allegation of the information that "defendant did then and there willfully, unlawfully, and feloniously ravish and carnally know her, the said Lina La Mont" is not equivalent to an allegation that the defendant did then and there willfully, unlawfully, and feloniously have sexual intercourse with her, the said Lina La Mont. In this contention we are of the opinion that defendant is in error. While the wording of the information is not in the language of the statute (section 325, Rev. Pen. Code), yet it seems to cover the statute, and be the same in equivalent words. The words "carnal knowledge" mean to have sexual bodily connection between man and woman. Commonwealth v. Squires, 97 Mass. 59; 6 Cyc. 351. On the trial of this case the only direct evidence as to the commission of the offense was given by the complaining witness, Lina La Mont, and by the defendant, Boyd La Mont. She testified that during the night of May 2, 1907, defendant came to her room and into her bed, and there had sexual intercourse with her, forcibly and against her will, and that on other occasions prior thereto, as far back as January, 1906, he had had intercourse with her under similar circumstances. All this testimony was squarely denied by defendant. The testimony of these two witnesses was of such character that the jury was bound to believe one and disbelieve the other. It was a question of veracity between those two.

On cross-examination of the defendant he was required, over proper objections, to give the following testimony and answer the following questions: "Q. How many times between January, 1906, and May, 1907, did you visit your daughter Pearl at her home? A. Do not remember. Q. Now do you remember an occasion, Mr. La Mont, about the 5th of December, 1905, of being in the kitchen with your daughter Pearl, when your son Delmar come into the kitchen? A. I have no distinct recollection-it is likely I were in the kitchen. Q. Now to refresh your memory, Mr. La Mont, I will ask you whether or not upon that occasion your son Delmar did not come into the kitchen at a time when you had your hand under your daughter Pearl's dress and on one of her limbs? A. No. Q. How long after December 5, 1905, did your daughter Pearl leave home. A. About a week previous to Christmas. Q. When was the next time she came home? A. About a month-she stayed at home about two hours-she came after more clothes. Q. Now to further refresh your memory, Mr. La Mont, did not you, on an occasion about the second week in January, 1906, in the nighttime after your daughters had retired for bed, go into your daughter's room and get into bed with your daughter Myra, and tell her to keep still so as not to wake her other sister, and that you would not hurt her, and that it was not wrong? A. I did not. Q. Now, Mr. La Mont, is it not a fact that, at about the second week of January, 1906, after your daughters had retired for the night, you did not go up into your daughters' room, and get into bed with your daughter Myra, and have intercourse with her at that time? A. It is not a fact. Q. Do you remember an occasion about a day or two previous to November, 1906, when you and Mrs. Kidney were alone in the kitchen, and had some conversation with her late in the evening? A. I do not. Q. Do you remember, Mr. La Mont, of Mrs. Kidney saying at that time, among other things: 'If you do not leave me alone, I will holler?"' To the foregoing questions the defendant properly objected, on the ground of improper cross-examination, immateriality, and asked for the purpose of prejudicing the jury. These objections were overruled, and exception duly taken, and the said rulings are now assigned as error. In this contention we are of the opinion that defendant is right. These questions relate to alleged charges against defendant other than that with which he is charged in the information. The great weight of authority seems to be against permitting such cross-examination. An accused person is required to meet the specific charge made against him, and he is not called upon to defend himself against every act of his life. With rare exception it is not competent to inquire, on cross-examination of a defendant, as to other crimes than that with which he is charged. He cannot be required to be prepared to vindicate himself against any alleged crime which...