State v. Nicholas

• Citation: 128 P. 543,46 Mont. 470
• Parties: STATE v. NICHOLAS.
• Decision Date: 12 December 1912
• Court: Montana Supreme Court

128 P. 543

46 Mont. 470

STATE v. NICHOLAS.

Supreme Court of Montana

December 12, 1912

Appeal from District Court, Chouteau County; Jno. W. Tattan, Judge.

Martin Nicholas was convicted of rape, and he appeals. Reversed.

H. S McGinley, of Ft. Benton, for appellant.

Albert J. Galen, Atty. Gen., for the State.

SMITH J.

On the 13th day of December, 1911, about 6:30 p. m. the defendant called at the home of the prosecuting witness, near Chinook and asked her mother if he might stay all night. Permission being given, about 9 o'clock all retired. The father and mother of the prosecutrix occupied one room, the defendant another, and prosecutrix and her eight year old sister a third, all on the same floor. An hour or so later the mother went into her daughter's room, and found her and the defendant occupying the former's bed. The defendant thereupon arose from the bed, and sat upon its edge. The mother was obliged to call the daughter's name three times before the latter answered, and then in reply to the inquiry, "Why did you not answer me before?" she said she was too weak and dazed to do so. She made no complaint of having been forcibly ravished, and did not admit that defendant had intercourse with her, until her father came into the room and asked her the direct question. She was 20 years of age. Her small sister was not disturbed or awakened. The mother heard, or thought she heard, noises in her daughter's room for at least 20 minutes before she went in to ascertain the cause. The prosecutrix testified that, when the defendant first came to her bed, she arose to her knees, but he turned her over onto her back and held her to his breast, so that she was unable to make an outcry. During the act of intercourse, one of her legs was out of bed, and she could not reach her sister with the other to awaken her. The foregoing is a brief summary of the testimony of the daughter and mother.

At the close of the state's case, the defendant withdrew his plea of "not guilty," and entered a plea of guilty. On the 18th day of April, 1912, he filed a motion for leave to withdraw his plea of guilty, and enter a plea of not guilty, and have a trial by jury, supporting the motion by an affidavit, wherein he set forth that he was advised by his counsel to plead guilty, the latter stating that he would get a light sentence if he did so, otherwise he would get 40 years. He stated to the attorney "that he would not plead guilty because he was not guilty," whereupon he was told that the evidence was very strong against him, and "the jury have got it into their heads that you...