State v. Rash
| Decision Date | 01 March 1911 |
| Parties | STATE v. RASH. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.
William Rash was convicted of statutory rape, and appeals. Affirmed.
C. A Kelley and James Byrnes, for appellant.
S. W Clark, Atty. Gen., Cloyd D. Sterling, Asst. Atty. Gen., O. S Hagen, State's Atty., for the State.
Upon an information duly filed by the state's attorney of Beadle county, the defendant was tried and convicted of the crime of statutory rape and sentenced to a term of years in the state penitentiary. From the judgment of the circuit court and order denying a new trial, the defendant has appealed to this court.
The appellant has assigned numerous errors, but of these a part only have been argued in this court, and those only that have been discussed in appellant's brief will be considered. A demurrer was interposed to the information upon the ground: The demurrer was overruled, and to the order overruling the same the defendant excepted, and now assigns the same as error. We are of the opinion that the demurrer was properly overruled, for the reason that, while there are certain allegations in the information clearly unnecessary in an information charging the crime of rape upon the person of a female child under the age of 18 years, these unnecessary allegations may be treated as surplusage and the information held good for the offense intended to be charged, namely, statutory rape under the provisions of our Criminal Code.
It is alleged that the assault was feloniously made upon one Edna Roberts, then and there not being the wife of the said William Rash, and being a female under the age of 16 years, and that he, the said William Rash, was over the age of 14 years, and that he did then and there ravish and carnally know her. The contention of appellant that two offenses are charged in the information, namely, rape and adultery, is not tenable. By section 338 of the Penal Code adultery is defined as follows: "Adultery is the unlawful voluntary sexual intercourse, of a married person, with one of the opposite sex, other than the husband or wife of the offender, and when the crime is committed between parties, only one of whom is married, both are guilty of adultery." Rape is defined by section 325 of the Penal Code, section 1, c. 11, Sess. Laws 1907, as follows: "Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (1) Where the female is under the age of 18 years," and the accused is over the age of 14 years. Section 326, Pen. Code. There is no allegation in the information that the alleged sexual intercourse was voluntary on her part. The information, therefore, clearly charges statutory rape upon a female under the age of consent, and one incapable of giving consent under the statute. We are clearly of the opinion, therefore, that but one offense is charged, and that is the crime of statutory rape upon a female under the age of 18 years.
It is further disclosed by the record that the state's attorney in opening the case to the jury stated to them, in substance, that the state expected to prove that the said defendant, prior to the commission of the alleged offense in this case, which, as we have seen, is alleged to have been on the 30th of November, 1907, had had improper intercourse with the said Edna Roberts, the stepdaughter of the defendant, at different times, and on the trial she was permitted to testify to such acts of intercourse between herself and the defendant over the objection made by the defendant, and that such statement by the state's attorney, and the evidence as admitted by the court over the objection of the defendant, constitutes reversible error. The admission of such evidence, however, was held by this court to be proper in the case of State v. Sysinger, 125 N.W. 879. In that case the question was very fully considered by this court, and, after a careful review of the authorities, this court arrived at the conclusion that the weight of authority clearly sustained the view adopted by the court. In a very exhaustive note to the case of Cecil v. Territory, 8 Am. & Eng. Ann. Cas. 457, 461, it is stated: and also admissible "to prove motive," and "any corroboration and explanation of the evidence of the act charged"-citing a very large number of decisions in support of these propositions in addition to those cited in State v. Sysinger, supra.
It is next contended by the defendant that the court erred in refusing to require the state's attorney to elect as to which act of sexual intercourse he would rely on for a conviction, but this contention is clearly untenable, as it is disclosed by the record that the state's attorney informed the court and counsel for the defendant that he would rely upon the act of sexual intercourse claimed to have been committed at the State Fair grounds, in Huron, on or about the 30th of November, 1907.
It is further contended by the appellant that the court erred in permitting the state to introduce the testimony of three physicians in which they gave their opinion as experts after an examination of Edna Roberts that she had had sexual intercourse with some person prior to the time of such examination. We are of the opinion that the court committed no error in admitting this evidence. This evidence was introduced as tending to prove that the said Edna Roberts had had sexual intercourse with some person at quite an early age, and as tending to corroborate her testimony that the defendant was that person. As corroborating testimony, the purpose for which it was introduced, we think it was clearly admissible.
It is further contended by the appellant that the court erred in not permitting him to prove as discrediting the testimony of the medical experts, or as rebutting the same, that the said Edna Roberts had been an inmate of a house of ill fame, and had visited places and persons where such intercourse could have been had, thus tending to prove that the condition shown by the medical experts to exist might have been caused by persons other than the defendant. We are of the opinion that the evidence offered of specific acts of unchastity on the part of the said Edna Roberts was properly excluded. People v. Abbott, 97 Mich. 484, 56 N.W. 862, 37 Am St. Rep. 360; State v. Smith, 18 S.D. 341, 100 N.W. 740. In the latter case it was held by this court on a prosecution for rape on a female under the age of consent evidence of prior intercourse by her with others was not admissible, either as bearing on her credibility or otherwise; the question of consent being immaterial. And in its opinion the court, speaking by Mr. Justice Fuller, says: "Under our statute it is rape to carnally know a female child under the age of 16 years, either with or without her consent, and no evidence of specific acts of similar unchaste conduct with men other than the accused is admissible to show...
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