State v. Nagel
| Decision Date | 14 August 1947 |
| Docket Number | Cr. No. 204. |
| Citation | 28 N.W.2d 665,75 N.D. 495 |
| Parties | STATE v. NAGEL. |
| Court | North Dakota Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Syllabus by the Court.
1. Demurrers to the information and motions to set it aside, are no longer available to a defendant in a criminal action. Section 29-1403, N.D.R.C.1943. But the relief heretofore afforded by them may now be had upon motion to quash. Section 29-1404, N.D.R.C.1943.
2. The statute, section 12-3001, N.D.R.C.1943, defines the crime of rape, and sections 12-3004, 12-3006, and 12-3008, simply determine the several degrees of the offense, depending upon the facts and circumstances attendant upon its commission.
3. When the offense charged in an information includes another smaller constituent offense, the charge of such other offense will not render the information duplicitous.
4. A charge of rape in the second degree by force and violence, accomplished with a female under the age of eighteen years, the age of consent, includes the lesser offense of rape in the third degree committed with the apparent consent of the female.
5. Where the statute fixes the age of consent of the female under that age she cannot consent. Her willingness to participate constitutes only an apparent consent and in such case the female is to be regarded as resisting no matter what the actual state of her mind may be at the time, since the law resists for her.
6. As to whether a continuance shall be granted in a criminal case and, if granted, the length thereof, are matters largely within the discretion of the trial court and the action of the court in granting or denying a continuance will not be disturbed except in case of an abuse of this discretion. Held, in the instant case, that there was no such showing on the part of the defendant as will warrant a holding that there was an absence of such discretion.
7. The defendant after preliminary examination was bound over to answer on a charge of rape in the second degree by force and violence. It is held, for reasons stated in the opinion, that since rape in the third degree is a smaller and constituent offense, there is no ground for the contention that the information is subject to challenge insofar as the included offense is concerned on the ground that the defendant had had no preliminary examination on a charge of that offense.
8. Senate Bill 40, printed as chapter 267, Session Laws 1945, and entitled 'An Act for the adoption of the North Dakota Revised Code of 1943, consisting of sixty-five titles, including an integration of the 1943 Session Laws as a complete body of laws, repealing all laws not specifically excepted, and declaring an emergency', is held, for reasons set forth in the opinion, to have been lawfully adopted and enacted by the 1945 legislative assembly and approved by the governor.
9. Construing section 23-0240, N.D.R.C.1943, providing that 'a registrar's certificate of the record of a birth and a certified copy of any birth certificate issued by the state registrar of vital statistics, shall be prima facie evidence of the facts therein stated and shall be accepted as such proof in any court in this state * * *' it is held, that a certified copy of the original physician's certificate of birth of an individual, filed of record in the office of the state registrar of vital statistics, is admissible when relevant in a criminal prosecution if properly proved, and such certified copy is properly proved when there is attached thereto a certificate by the registrar of vital statistics or his deputy as to its correctness and authenticity.
10. Article Six of the Amendments to the Constitution of the United States which, among other things, provides, 'In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him,' has no application to trials in the courts of the state of North Dakota.
11. Section 23-0240, supra, providing that a certified copy of a certificate of birth issued by the state registrar of vital statistics shall be prima facie evidence of the facts stated therein and shall be accepted as such proof by any court in this state, does not contravene the constitutional guarantee contained in the Sixth Amendment to the Constitution of the United States.
12. A confession made by the defendant in a criminal action is not admissible in evidence against him unless made voluntarily, that is, without compulsion or inducement of any sort fairly likely to produce an untrue statement.
13. As to whether a confession is voluntarily or involuntarily made is a matter to be determined in the first instance by the court, and where the evidence is conflicting such determination by the court will not be disturbed on appeal unless manifestly against the weight of the evidence. The record is examined in the instant case, and it is held, for reasons stated in the opinion, that the court was warranted in arriving at the conclusion that the confession here in question was voluntary.
14. Mere delay in taking a defendant arrested without a warrant before a committing magistrate as required by the statute, will not render a confession made in the meantime inadmissible.
15. Evidence of independent collateral crimes is not admissible merely to prove the depravity of the defendant or his criminal disposition, but if evidence otherwise relevant is offered the fact that incidentally it tends to establish collateral matters or prove collateral crimes does not render it inadmissible.
16. Certain assignments of error predicated on rulings of the court in the admission of evidence, are examined, and held, for reasons stated in the opinion, that there was no prejudicial error because of such rulings.
17. Certain assignments of error predicated on instructions given by the court in his charge to the jury, are examined, and held, for reasons stated in the opinion, that there was no error on account of such instructions.
18. The record is examined and held that the evidence is sufficient to sustain the verdict.
Murry & Murray, of Bismarck, for appellant.
Nels G. Johnson, Atty. Gen., and George S. Register, State's Atty., of Bismarck, for respondent.
The defendant, Earl Nagel, was convicted in the District Court of Burleigh County of the crime of rape in the third degree. The information on which he was tried charged that the defendant did commit the crime of rape in the second degree in the manner following towit: 'That at the said time and place the said defendant did then and there wilfully and unlawfully and feloniously have an act of sexual intercourse accomplished with a female (naming the complaining witness) not the wife of said defendant, under the following conditions: That said female did then and there resist, but her resistance was overcome by force or violence; that said female was then and there under the age of eighteen years and of the age of sixteen years, or thereabouts; that at said time the said defendant was more than seventeen years of age and under twenty years of age.' The jury returned a verdict of guilty of rape in the third degree. Thereafter the defendant moved in arrest of judgment and later for a new trial. Both these motions were denied. Judgment was entered committing the defendant to the state training school. This appeal is from the judgment and from the court's order denying the defendant's motion for a new trial.
In support of this appeal the defendant challenges the sufficiency of the evidence to sustain the verdict and specifies a large number of errors of law predicated on the rulings on the motions above set forth and on other rulings made by the court prior to and during the trial, and on certain of the instructions given by the court in his charge to the jury.
The alleged offense was committed in the early morning hours of July 10 1945. The complainant, as soon as it was possible for her to do so, went to the police officers of the city of Bismarck and made complaint. The defendant was arrested and held for examination. Thereafter a formal complaint was made charging him with the crime of rape in the second degree. A preliminary hearing was had. Evidence was offered tending to show the defendant had committed the crime of rape by force and violence, and that at the time of the commission thereof he was nineteen years of age. Accordingly, he was bound over to the district court on a charge of rape in the second degree.
In due course the state's attorney filed an information in the district court charging rape in the second degree by force and violence. The defendant was arraigned thereon and entered a plea of not guilty. Before the trial began the state's attorney learned that the complaining witness at the time of the commission of the offense was under the age of eighteen years. He then moved the court for leave to file an amended information in which that fact was alleged. The defendant objected on the ground that the proposed amended information was duplicitous in that it charged both a rape by force, and a statutory rape of a female under the age of consent, and on the further ground that he had never had a preliminary hearing on the charge of statutory rape. The objection was overruled and an amended information was filed in the form first heretofore set forth. The defendant was then re-arraigned. He thereupon filed a written motion to set aside the amended information on the grounds that it was duplicitous in that it charged two offenses, towit: Rape in the second degree by force and violence, and rape in the third degree of a female under the age of eighteen years, and on the further ground that he had never had a preliminary examination on the charge of statutory rape. The motion was denied....
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