State v. Murray

• Decision Date: 16 February 1926
• Docket Number: 5765
• Citation: State v. Murray, 49 S.D. 429, 207 N.W. 454 (S.D. 1926)
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GEORGE E. MURRAY, Defendant and appellant.
• Court: South Dakota Supreme Court

49 S.D. 429

207 N.W. 454

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

GEORGE E. MURRAY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Harding County, SD Hon. W. F. Eddy, Judge #5765--Affirmed Dan McCutchen, Belle Fourche, SD Haves & Heffron, Deadwood SD Attorneys for Appellant. Buell F. Jones, Attorney General Bernard A. Brown, Pierre, SD Attorneys for the State. Opinion filed February 16, 1926

MORIARTY, C.

This is a second appeal in this case. The opinion on the former appeal is found in 46 SD 410, 193 N.W. 132. That decision set aside the conviction, and ordered a new trial, to be granted on the single ground that the trial court erred in admitting certain evidence. On the second trial defendant was again found guilty of the crime of second degree rape committed on one Ingaborg Westre, a girl who was about 15 years old at the time of the alleged offense.

The corpus delicti was established by undisputed proof of the age of the girl, and that about October 27, 1919, she gave birth to a child. As the girl died at about the time of her confinement, the evidence as to defendant's connection with the crime consisted wholly of his own acts and admissions.

As their first assignment of error, appellant's counsel argue that the trial court erred in refusing to permit appellant to present evidence tending to prove illicit sexual relations between Ingaborg Westre and men other than the defendant, "within the period of gestation." They argue that under the circumstances of this case the rule announced by this court in State v. Wilson, 167 N.W. 396, does not apply. They contend that in the instant case the birth of a child is relied upon by the state, not only to prove the corpus delicti, but also as fixing the liability upon defendant. This contention is unsound. In the Wilson case the prosecutrix had given birth to a child, and had testified that defendant was its father. On her cross-examination she was asked as to intercourse with another, from which pregnancy might have resulted, and the trial court sustained an objection to the question. Under those circumstances, this court said:

"We are of the view that in this character of case whether or not she had intercourse with some other person, either before or after the intercourse on which the state relies for conviction, was an immaterial issue."

The decision, in that case is directly applicable to the instant case, and is supported by: State v. Smith, 100 N.W. 740; State v. Whitesell, 142 Mo. 467, 44 S.W. 332; State v. Ogden, 39 Or. 195, 65 P. 449; Walker v. State, 8 Okl. Cr. 125, 126 P. 829; Plunkett v. State, 72 Ark. 409, 82 S.W. 845; State v. Stimpson, 78 Vt. 124, 62 A. 14, 1 LRA (NS) 1153, 6 AnnCas 639, and numerous other authorities.

Aside from the contentions as to the admissibility of the above-mentioned class of evidence, appellant's counsel alleges that the trial court erred in its rulings on admission and rejection of evidence as follows: Defendant had testified that he made his second trip to Belle Fourche, where the girl was being held at the hospital of Dr. Champney, because he received a written order from Dr. Champney to go back immediately. Questions as to by whom this written order was delivered to defendant, and who went with him when he went to Belle Fourche, were objected to as immaterial and the objection sustained. The answer that a man named Gillespie and a man named Howard went with him was stricken out on motion of the state. Gillespie was one of the men with whom defendant offered to prove the girl had illicit relations, and the purpose of these questions seems to have been to get some of that line of evidence to the jury. The writing which defendant called an order from Dr. Champney was not introduced nor its absence accounted for. The rulings of the trial court in that matter do not constitute reversible error.

Defendant assigns as error the exclusion from evidence of a syringe which defendant identified as one he bought from Dr....