State v. Mungeon

• Decision Date: 01 August 1906
• Citation: 20 S.D. 612,108 N.W. 552
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. ALEX MUNGEON, Plaintiff in error.
• Court: South Dakota Supreme Court

20 S.D. 612

108 N.W. 552

STATE OF SOUTH DAKOTA, Defendant in error,

v.

ALEX MUNGEON, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Grant County, SD Hon. J. H. McCoy, Judge Affirmed George S. Rix Attorney for plaintiff in error. L. H. Bentley, State’s Atty. Philo Hall, Atty. Gen. Aubrey Lawrence, Asst. Atty. Gen. Attorneys for the State. Opinion filed, August 1, 1906

FULLER, P. J.

Of the crime of incest, committed upon the person of his own daughter, plaintiff in error was found guilty as charged in the information and adjudged to serve a term of seven years in the Penitentiary at Sioux Falls. The inference is fairly sustained by the record that after the preliminary examination and before the trial a scheme was devised by certain members of the family to prevent the state from proving its case and leading questions propounded by leave of court to the witness, Theresa Mungeon, one of the daughters of the accused called on behalf of the prosecution, resulted as follows:

“Q. Now, Theresa, didn’t you make the statement, at the time your father was arrested, that your father had been in the bedroom several times out at your home on the farm with Amelia?

A. Yes, sir.

Q. Then you have seen your father and Amelia going in and coming out of the bedroom together, at home on the farm, have you not, a good many times?

A. No, sir.

Q. You made the statement, at the time your father was arrested, that you have seen them, and seen your father come in the bedroom and pull Amelia out of bed and take her out in the other room?

A. I said I saw him pull her out of bed, but I did not say he brought her out in the other room.

Q. You say you saw him come in the bedroom and pull her out of bed?

A. Yes, sir.

Q. You made a statement at the time your father was arrested that your father not only slept with Amelia, but with all the girls out on the farm?

A. Yes sir.

Q. Didn’t you make the statement at the time he was arrested that he had been sleeping with Amelia nearly all of the time, or a good many times?

A. No sir.

Q. Didn’t you come to my office, here at Milbank, and state to me that you were willing to testify in court in this case, and that you made the statement that your father was the father of Amelia’s child?

A. No, sir.

Q. Didn’t you also state to me a few days later that you had changed your mind and was not going to come into court and that Amelia had got into all this trouble, and that she could get you out?

A. Yes, sir.

Q. After you were put in jail here as a witness, didn’t you say to me that if I would let you out you would go to court and tell all you knew about it, and make the same statement to me that you made to Mr. Bouck at his office—didn’t you say that?

A. Yes, sir.

Q. That, if I did not let you out, you would not—didn’t you make that statement to me, too?

A. Yes, sir.”

It also appears that during the trial, and while the complainant, Amelia Mungeon, was on the witness stand, the accused resorted to certain signs or manifestations to influence her testimony in his behalf, and, without claiming her personal privilege as an accomplice, she at first refused to answer all questions tending to establish the guilt of her father. The following discloses the trend of the examination and her sole reason for refusing to answer:

“Q. Now, Amelia, you are the complaining witness in this case. I will ask you to state to the court and jury if on or about the 14th day of June you had sexual intercourse with your father, in 1904. (Witness does not answer.)

By the Court: The court will protect you; nobody will harm you.

Q. You did, didn’t you?

A. I said I would drop the case and would not say anything on either side, and I refuse to answer the question.

By the Court: You will have to answer the question truthfully, and have to tell the truth. That is all you are required to do, which is to truthfully answer the question that this gentleman asks you, and, of course, you cannot drop the case.

A. I have dropped it, and will drop it.

Q. By a Juror: If the court please, I notice the prisoner at the bar making signs to the witness every time she has been asked that question.”’

After repeated and strenuous efforts to induce the witness to testify, accompanied with assurance on the part of the court that she need not hesitate on the ground of fear from any source, a recess was taken, and upon convening in the afternoon counsel for the defendant objected to any further examination of the witness, and requested the court to advise her of the right to refuse to answer all criminating questions. The action of the court in overruling this objection and in declining to inform the witness as requested is urged as reversible error.

Whenever the testimony sought to be elicited may tend to subject a witness to criminal liability, he has the constitutional right to refuse to answer upon that ground, and, though the privilege is purely personal, it may well be suggested to the witness by the court whenever the demands of public justice require the exercise of such discretion. As the privilege of refusing to answer any incriminating question is thus personal to the witness, it appears to be well settled that he alone can claim it. In Commonwealth v. Shaw, 4 Cush. (Mass.) 594, 50 AmDec 813, the headnote, fully sustained by the opinion, is as follows:

“It is the privilege of a witness, and not the right of the party against whom he is called, to object to his giving evidence to criminate himself; and it is not the duty of the judge, upon the interposition of such party, and independent of any objection of the witness, to inform the latter of the rule of law that he is not bound to criminate himself.”

Lothrop v. Roberts, 16 Colo. 250, 27 Pac. 698; Commonwealth v. Gould, 158 Mass. 499, 33 N.E. 656; State v. Morgan, 133 NC 743, 45 S.E. 1033; Brown v. State, 20 S.W. 924; Ward v. People, 6 Hill 144; State v. Van Winkle, 80 Iowa 15, 45 N.W. 388; Morgan v. Halberstadt, 60 Fed. 592, 9 CCA 147; State v. Wentworth, 20 Am. Rep. 688; State v. Foster, 55 AmDec 191; White v. State, 52 Miss. 216; Ingalls v. State, 48 Wis. 647, 4 N.W. 785; San Antonio St. Ry. Co., v. Muth, 27 S.W. 752. Clearly the reasons stated by complainant for refusing to answer exclude the idea that she desired to claim any personal immunity, and the fact that she freely went into all the abhorrent details of the crime, after opposing counsel had suggested her right in open court and in her presence, leads to the irresistible conclusion that her...