State v. Oliver

• Decision Date: 04 October 1951
• Docket Number: Cr. 238
• Parties: STATE v. OLIVER.
• Court: North Dakota Supreme Court

Page 564

49 N.W.2d 564

78 N.D. 398

STATE v. OLIVER.

Cr. 238.

Supreme Court of North Dakota.

Oct. 4, 1951.

Rehearing Denied Nov. 8, 1951.

Syllabus by the Court.

1. It is not error, in a criminal case, to fail or refuse to charge the law as to circumstantial evidence, when the State's case does not rest wholly or principally on circumstantial evidence and there is direct evidence of the crime which is sufficient, if believed by the jury, to establish the defendant's guilt of the crime with which he is charged.

2. Under NDRC 1943, 12-3003, any sexual penetration, however slight, is sufficient to complete the crime of rape.

3. It is a general rule applicable to all witnesses, including children, that it is the province of the court to determine as a matter of law the competency of a witness to testify.

4. After a proposed witness has been held to be competent to testify, the question of the credibility of the witness and the weight to be given to his testimony are matters for the consideration and determination of the jury. Under this rule it is for the jury and not the court to pass upon the credibility of a child, who testifies as a witness in a case, and the weight to be given to his testimony.

5. There is no precise age which determines the question of the competency of a child as a witness; this depends on the intelligence and capacity of the child, and his appreciation of the difference between truth and falsehood, and of his duty to tell the former.

6. The decision of the question of competency of a child as a witness rests primarily with the trial judge, who sees the proposed witness, notices his appearance and manner, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath as a witness; and the decision of the trial judge as to the competency of the witness will not be reversed by the appellate court unless it is clearly erroneous.

7. In the instant case the defendant was prosecuted and convicted of the crime of rape in the first degree and he challenges the sufficiency of the evidence to sustain the verdict and contends that the evidence is generally so unsatisfactory and the testimony of the prosecutrix, Roberta Vondal, so unsatisfactory and contradictory that the court should have exercised its discretion and granted a motion for a new trial on that ground. The prosecutrix at the date of the commission of the offense was a child only six and a half years of age. It is held for reasons stated in the opinion that the trial court did not err in ruling that the prosecutrix was competent to testify as a witness. It is held further that there was sufficient evidence from which the jury was justified in finding the defendant guilty of rape in the first degree as charged in the information.

Milton K. Higgins, Bismarck, and John E. Williams, Washburn, for appellant.

E. T. Christianson, Atty. Gen., and Robert Vogel, State's Atty., Garrison, for respondent.

CHRISTIANSON, Judge.

The defendant was convicted of the crime of rape in the first degree in the District Court of McLean County and sentenced to fifteen years imprisonment in the State's Penitentiary. After judgment of conviction had been rendered the defendant moved for a new trial. The motion was denied and the defendant has appealed.

The victim of the alleged rape and the defendant both testified. The facts necessary to an understanding of the questions presented on the appeal may be stated substantially as follows: The crime is alleged to have been committed on August 24, 1950, in the County of McLean in this state. At that time the defendant was 42 years of age, a carpenter by trade, had been married for nine years and was living with his wife and six year old son at Silver City some three miles from Riverdale,--the city constructed by the Federal Government at the Garrison Dam. The defendant had no previous convictions of sex crimes but had been convicted of the crime of robbery in the State of Missouri in 1935 and sentenced to fifteen years imprisonment in the penitentiary of Missouri. He was released from the penitentiary and pardoned after serving some five years and three months of his sentence. The defendant had been working as a carpenter in Riverdale and vicinity. The victim of the alleged rape was one Roberta Vondal, who at the time was six years and six months of age, in the first grade in school, and living with her parents in Silver City. The Olivers and Vondals were acquainted with each other and the two children had played together a good deal. The undisputed evidence shows that on August 24, 1950, the defendant made a trip in his automobile from Silver City to Max, a town approximately 25 miles from Silver City, and back to Silver City. He left Silver City about one o'clock in the afternoon and drove directly to Max. He went there for the purpose of contacting a party with respect to carpenter work. He stated that some carpenters at Riverdale were temporarily out of employment for lack of materials, and he had heard that some carpenter work might be had near Max. The defendant's wife and son and Roberta Vondal accompanied him in the automobile. He saw the party that he went to see. He and his wife and son and Roberta had lunch at a cafe in Max and then returned to Silver City arriving there about 5 o'clock in the afternoon. Roberta testified that she did not eat dinner with the Olivers that evening. She further testified that after they had returned from Max she went with Oliver in his automobile to Riverdale to look at some lumber; that he asked her to go along; that no one else went with them. She said, 'after we got back from Max we went to Riverdale to look at the lumber. Q. Who do you mean when you said we, how many went in the car? A. Two.' She further testified that the two were Carl, the defendant, and herself. That he got out of the car and looked at the lumber which was on the ground, that he got back in the car and drove out on the Garrison road. That he drove on this road a little ways and turned off the road and stopped the car on grassland. Thereafter Roberta further testified as follows:

'Q. Then what happened when he stopped--just tell us what happened, Roberta? A. He got on top of me.

'Q. Did he do anything with your clothes? A. Yes.

'Q. What did he do with your clothes? A. Pulled down my pants.

'Q. Did he do anything with his clothes? A. Yes.

'Q. What did he do? A. Opened up his pants.

'Q. Did you say anything to him then? A. Yes.

'Q. What did you say? A. I asked him what he was doing.

'Q. What did he say then? A. He said, he wouldn't tell me.

'Q. What was he doing then, Roberta, can you tell me what he was doing then, did he touch you? A. Yes.

'Q. Where did he touch you--you tell me or show me where he touched you--where was it? A. Down here.

'Mr. Vogel (State's Attorney): I ask that the record show the witness pointed at her crotch.

'Q. Do you know what it was he touched you with, Roberta? A. His hands.

'Q. Did he touch you with anything else? A. No.

'Q. Are you sure--did he put anything inside of you? A. Yes.

'Q. Was that his hands? A. No.

'Q. Some other part of him, was it? A. Yes.

'Q. Did you talk to him about it? A. I started crying and he said if I didn't quit crying he wouldn't take me home.

'Q. Did he say anything about talking to your mama and daddy about it? A. Yes.

'Q. What did he say? A. You better not tell your daddy and mama or I will give you a licking. * * *

'Q. Who was it did this? A. Carl Oliver.

'Q. What kind of a car did he have? A. Hudson.

'Q. Do you remember Carl Oliver now, if you see him? A. Yes.

'Q. Do you see him here today? A. Down there.

'Q. At the end of the table down there? A. Yes.

'Mr. Vogel (State's Attorney): I ask that the record show the witness pointed at the defendant. * * *

'Q. Where was it when this happened out in the country, where were you? A. In the car.

'Q. Was it on the seat of the car? A. Yes.

'Q. Front seat or back seat? A. Front seat.

'Q. Then he took you back and left you off at the Drug store? A. Yes.

'Q. Then what did you do? A. Walked home from the drug store.

'Q. Did you get all the way home? A. My mama met me.'

Roberta's mother, Mary Vondal, testified that her husband came home from work about 4:30 in the afternoon, that she prepared supper for him and for her brother and after they had had their supper she went to look for Roberta. That when she met her, Roberta was nervous and upset and asked her mother to carry her. That she then picked Roberta up, and that Roberta hugged her mother, and that she was shaking and her mother asked her if she was cold and she said no. That Mrs. Vondal then took Roberta to her brother's house about a block and a half away. That there was no one else present but Roberta and her mother and the mother asked 'What is the matter, honey?' and Roberta answered, 'Nothing.' That the mother than said, 'If there is anything wrong, tell me,' and that Roberta told her mother little by little what happened to her that day. That Roberta said: 'Carl Oliver did something to me.' 'He took me out on the Garrison road. He was going out to Riverdale to look at lumber' and 'I got in, we drove to Riverdale and then coming back we drove off the Garrison road. He pulled down my panties and got on top of me and I said stop you are hurting me, and he said he wouldn't, and I was crying, and he said 'you quit crying or I never will bring you home' and I quit crying, and I got in the back seat and came home, and he left me off at the drug store, and he said, 'if I ever told my mama and daddy he would give me an awful spanking.' Mary Vondal further testified: 'I asked her, 'did he put anything in you' and Roberta said 'yes, he did,' and I said 'did he hurt you' and Roberta said 'yes." Mrs. Vondal testified that her husband was not at home at the time, that she would say this was about 7 or 7:30 in the evening,...