State v. Noel

• Decision Date: 29 July 1936
• Citation: 268 N.W. 654,66 N.D. 676
• Parties: STATE v. NOEL.
• Court: North Dakota Supreme Court

66 N.D. 676

268 N.W. 654

STATE

v.NOEL.

Supreme Court of North Dakota.

Cr. 135.

July 29, 1936.

Syllabus by the Court.

1. The evidence in the instant case is examined, and it is held that it fully sustains the verdict of the jury.

2. The victim of a rape is never an accomplice; the rule in this respect being the same whether the crime was committed by force, or against the will of the female, or by fraud, or consisted in carnal knowledge of a female under the age of consent, although she actually consented thereto.

3. The test by which to determine whether or not one is an accomplice of a defendant on trial is whether or not he could be indicted and punished for the crime with which defendant is charged.

4. Where the state elects to try a defendant upon a charge of rape in the second degree and the defendant has been arraigned and put upon his trial upon a sufficient legal accusation of rape in the second degree, the state is bound by its election, and, in case of an acquittal, or conviction sustained on appeal, the defendant cannot be tried again for the same acts on a higher degree of the offense.

5. It is error for the state's attorney to ask of his own witness if he had not stated specific facts to him out of court in the presence of the sheriff, and on denial to prove by the sheriff that he had made such statement and by so doing get before the jury damaging evidence that could not be secured otherwise.

6. A party can impeach his own witness only when he has testified to facts injurious to his cause. A mere negative answer, when the party expected an affirmative answer, will not give the right to contradict the witness.

Appeal from District Court, Emmons County; Wm. H. Hutchinson, Judge.

Matt A. Noel was convicted of second degree rape, and he appeals.

Reversed, and new trial ordered.

BURR, J., dissenting.

C. F. Kelsch, of Mandan, for appellant.

Robert Chesrown, State's Atty., of Linton, P. O. Sathre, Atty. Gen., and T. A. Thompson, Asst. Atty. Gen., for the State.

BURKE, Chief Justice.

The defendant, Matt A. Noel, was convicted, in the district court of Emmons county, of the crime of rape in the second degree.

The motion for a new trial was overruled, and the defendant appeals from the judgment of conviction and from the order denying the motion for a new trial.

Appellant specifies as error:

“That the verdict is clearly against the evidence in that:

(1) That the evidence is insufficient as a matter of law to establish the guilt of the defendant, beyond a reasonable doubt, of the crime of Rape in the Second Degree as charged in the information; that there is no sufficient evidence to corroborate the prosecutrix to prove the commission of an act of Rape.

(2) That the only evidence offered and received as to defendant's age at the time of the commission of the crime of Rape in the Second Degree as charged in the information shows that he was 25 years of age on the 1st day of January, 1935.”

[1] There is no merit in the contention that the verdict is against the evidence. The specific acts are testified to by the prosecutrix and the witness Hazel Hoff testified to circumstances and to acts which clearly connect the defendant with the commission of the crime.

[2][3] The theory of appellant is that the prosecutrix, Julia Horner, is an accomplice, and that therefore her testimony must be corroborated. If she was an accomplice, her testimony is corroborated by the testimony of the witness Hazel Hoff; but the prosecuting witness, Julia Horner, was not an accomplice. “The victim of a rape is never an accomplice, the rule in this respect being the same whether the crime was committed by force, or against the will of the female, or by fraud, or consisted in carnal knowledge of a female under the age of consent, although she actually consented thereto.” 16 C.J. 683, § 1392; Price v. State, 56 Tex.Cr.R. 82, 119 S.W. 99;State v. Henderson, 84 Iowa, 161, 50 N.W. 758;Melton v. State, 71 Tex.Cr.R. 130, 158 S.W. 550;Bond v. State, 63 Ark. 504, 39 S.W. 554, 58 Am.St.Rep. 129;People v. Bernon, 29 Cal.App. 424, 155 P. 1021;Yeager v. United States, 16 App.D.C. 356;McCreary v. Com., 163 Ky. 206, 173 S.W. 351;Com. v. Feist, 50 Pa.Super. 152;Price v. State, 64 Tex.Cr.R. 448, 142 S.W. 586;Battles v. State, 63 Tex.Cr.R. 147, 140 S.W. 783;Smith v. State (Tex.Cr.App.) 73 S.W. 401;Smith v. State, 51 Tex.Cr.R. 137, 100 S.W. 924;Miller v. State (Tex.Cr.App.) 72 S.W. 996;Hamilton v. State, 36 Tex.Cr.R. 372, 37 S.W. 431;State v. Hilberg, 22 Utah, 27, 61 P. 215. “The usual test by which to determine whether or not one is an accomplice of a defendant on trial is whether or not he could be indicted and punished for the crime with which defendant is charged.” 16 C.J. 671, § 1344. This statement in the text is supported by an unbroken line of authorities cited in the notes and is unquestionably the law.

Prosecuting witness, as a matter of course, could not be prosecuted for the crime of rape, and therefore is not an accomplice. The case cited and relied upon by appellant is an incest case, where, as a matter of course, both parties could be prosecuted and each was the accomplice of the other.

[4][5] The defendant was charged, in the information, with rape in the second degree. It was alleged that he was over the age of 20 years, to wit, 23 years, and under the statute a defendant over 20 years of age and under 24 can be charged only with rape in the second degree when the female is under 18 years of age. It developed at the trial that the defendant was 25 years of age, and it is the contention of the appellant that there is a fatal variance between the allegations and the proof; the allegations charging the defendant with rape in the second degree and the proof showing him to be guilty of rape in the first degree. The specific objection by the appellant is: “I want to object to that proof, the defendant's age constitutes a fatal variance between the crime charged in the complaint and information and the crime it would constitute under the statute.”

The court was properly constituted, it had jurisdiction of the offense charged, of the defendant, and by the impaneling of the jury and proceedings in the prosecution the defendant was placed in jeopardy. “Where, on the trial, the court, without the consent of accused, discharges the jury because it is of the opinion that the evidence shows him guilty of a higher crime, for which crime he is subsequently indicted, he is twice in jeopardy and should be acquitted.” 16 C.J. 253, § 407; People v. Ny Sam Chung, 94 Cal. 304, 29 P. 642, 28 Am.St.Rep. 129;Ingram v. State, 124 Ga. 448, 52 S.E. 759: Holt v. State, 38 Ga. 187.

Reason for rule: “If the State thinks proper, by its prosecuting officer, to indict a party for an assault with intent to murder, upon a given state of facts, and upon the trial thereof, the defendant is acquitted, can the State then prefer another indictment, alleging precisely the same state of facts (with the exception of the malicious intent), and put the party again upon his trial for the same criminal acts, by altering the name of the offence? The State, having made its election as to the nature and character of the offence, for which it will prosecute the party upon a given state of facts, if, upon the trial, the defendant is acquitted, ought not the State to be bound by its election, and not be permitted again to indict and prosecute the defendant for the same criminal acts, under the name of another offence? The question to be answered is, has the defendant been arraigned and put upon his trial upon a sufficient legal accusation, for the same criminal acts with which he is charged the second time? If he has, then he has been put in jeopardy, within the true intent and meaning of the constitution, and cannot be tried the second time for the same criminal acts, under the same, or a different named offence.” Holt v. State, 38 Ga. 187. Thus this rule applies to a person indicted for manslaughter, where the court discharges the jury and such person is subsequently indicted for murder. People v. Hunckeler, 48 Cal. 331.

In the instant case the state elected to try the defendant for rape in the second degree and it is bound by its election. The defendant was put in jeopardy, and, if he had been acquitted, he could not be tried again; if the conviction is sustained, he cannot be tried again.

[6][7] Albert Heer was called as a witness for the state. He testified he was not in the party with the defendant, the prosecuting witness, and Hazel Hoff either at the dance, the Green Lantern Café, where other witnesses testified they had lunch, nor at the cemetery, where, according to the testimony of the prosecuting witness, the offense was committed. The prosecuting witness and Hazel Hoff had testified that the witness Heer was with them at the dance, at the Green Lantern Café, and at the cemetery, where they said the offense was committed. After denial on the part of Heer, the state's attorney then cross-examined him as to the statements made in his presence and in the presence of others. The state's attorney then asked the witness this question:

“Q. Now, I will ask you did you not state to me that Matt Noel told you after you came back from the cemetery that he had had intercourse with Julia Horner? A. No.”

Louis Langeliers, a witness, is called for the state and is asked this question:

“Q. Did you hear the witness, Albert Heer, deny having made the following statement * * * that Albert Heer told me that Matt Noel told him that he had had intercourse with Julia Horner on the night in question?

By Mr. Kelsch: That is objected to as prejudicial and not binding on him, and not made in the presence of the defendant.

By the Court: It will be admitted merely for the purpose of impeachment of the witness, Albert Heer.

A. He did.”

What was the purpose of impeaching this witness? His testimony was purely negative, and, so far as his testimony was concerned, the record was the same...