State v. Morgan

• Decision Date: 20 January 1920
• Docket Number: 4576
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. FRED H. MORGAN, Defendant and appellant.
• Court: South Dakota Supreme Court

42 S.D. 517

176 N.W. 35

STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. FRED H. MORGAN,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Davison County, SD

Hon. Frank B. Smith, Judge

#4576--Affirmed

H. G. Giddings

Attorney for Appellant.

Byron S. Payne, Atorney General

E. R. Winans, Assistant Attorney General

Attorneys for the State.

Opinion filed January 20, 1920. Rehearing Denied March 25, 1920.

GATES, J.

Appeal from a conviction for incest and from an order denying a new trial.

At the opening of the trial the prosecution asked leave to indorse on the information the names of two additional witnesses. A section of statute, now section 4702, Rev. Code 1919, required the state's attorney to indorse on the information "the names of the witnesses known to him at the time of filing the same." It did not clearly appear that prior thereto the state's attorney knew that the testimony of these witnesses would be material. Appellant's attorney was given notice, before the trial, of the intended application. Appellant did not attempt to make a showing of surprise, nor did he ask for a postponement of trial. Under this situation the action of the trial court in allowing the application was not error. State v. Cherrington, 149 N.W. 421.

Appellant contends that the information did not charge a public offense. Section 350, Pen. Code (section 3864, Rev. Code 1919), is as follows:

"Persons who, being within the degrees of consanguinity within which marriages are by the laws of the state declared incestuous and void, intermarry with each other, or commit adultery or fornication with each other, are punishable by imprisonment in the state penitentiary not exceeding ten years."

Section 38, C. C. (section 106, Rev. Code 1919), is as follows :

"Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, and between cousins of the half as well as of the whole blood, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate."

The information charged:

"That defendant did commit the crime of incest as follows:

"That the said Fred H. Morgan, on the 21st day of July, A. D. 1918, at Mitchell, in the county of Davison, and state of South Dakota, did willfully, unlawfully, and feloniously have incestuous intercourse with one Bernice Morgan, and did then and there live and cohabit as husband and wife with the said Bernice Morgan, she the said Bernice Morgan being then and there the daughter of Bert Morgan, and he, the said Bert Morgan, and the said Fred H. Morgan being then and there brothers of the whole blood."

Appellant says that the charge that they cohabited as husband and wife does not charge that they maintained sexual relations. Appellant errs. Such is the ordinary meaning of the words "cohabited as husband and wife." Burns v. Burns, 60 Ind. 259; State v. Spurling, 115 La. 789, 40 So. 167; State v. Smith, 18 Ind. App. 179, 47 N.E. 685. Furthermore, the charge that appellant "did have incestuous intercourse" with the daughter of his brother stated a criminal offense. Hintz v. State, 58 Wis. 493, 17 N.W. 639.

Appellant next complains of the admission in evidence of certain letters written by him from Colorado to the parents of his niece tending to show the fact of marriage of the defendant to his niece in Colorado and the fact of their living together there as husband and wife, although one letter showed that they were staging their relationship as uncle and niece, and tending to show how happy they were in their new estate. The letters were in part flippant, conveyed the impression of bravado, advised the addressees that the matter was the concern of himself and his niece, and not the concern of her parents, and in effect dared them to do anything about it. In order to prevent the submission of the letters to the jury, the defendant admitted in open court the fact of the marriage in Colorado, the fact that they there cohabited as husband and wife, and that he then had knowledge of their blood relationship. The court received the letters in evidence notwithstanding the admissions. Appellant says that the sole purpose of offering the letters was to prejudice the jury against him, and relies upon the case of State v. Strum (Iowa), 169 N.W. 373. In that case the defendant was charged with receiving stolen property; while denying the charge he admitted in open court that whatever he did was done designedly. The court said (the italics are ours):

"Over apt objection, testimony was admitted tending to show that the defendant had bought stolen property through a transaction not connected with the one being prosecuted for and occurring prior to the act upon which the indictment is based. One defense of its admission made by the state is that evidence of the purchase of other stolen brass is admissible to show the intent and the absence of mistake or accident, and the many cases cited for this proposition fully sustain the statement. But the question remains whether, since this is the only purpose for which such evidence is properly receivable, it may be adduced over objection when there is an admission of record that there was no accident or mistake, and that whatever was done was done intentionally and knowingly."

The court then decided that it was error to receive that testimony.

But in this case the admissibility of the letters was not limited to the question of intent. They were admissible, not only to prove the matters covered by the admission in open court, but as bearing upon the probability of the commission of the very act charged. In 14 R. C. L. 38, we find the following:

"According to the weight of authority, evidence of other acts of sexual intercourse or lascivious familiarity between the same parties is admissible as tending to show a tendency or disposition to do the thing complained of."

This is particularly true where, as in this case, the act of sexual intercourse charged was proved only by circumstantial evidence. The general rule as stated in 16 Corp. Jur. 562, is as follows:

"Evidence of facts which in themselves are relevant to the...