State v. Rathjin
| Decision Date | 03 April 1923 |
| Docket Number | 5121,5122 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. HENRY J. RATHJIN, Defendants and appellant. STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. AUGUST SEUBERT, Defendants and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County, SD
Lynch & Doyle and Louis H. Smith, Sioux Falls, SD
Attorneys for Appellants.
Benj. D. Mintener, Assistant Attorney General, Pierre, SD
Attorneys for Respondent.
Opinion filed April 3, 1923
Defendants were jointly charged in the information with the crime of rape, as follows:
"That August Seubert and Henry C. Rathjin, late of said county, yeomen, on the 1st day of September in the year of our Lord one thousand nine hundred and twenty-one at the county of Minnehaha and state of South Dakota aforesaid then and there did willfully, unlawfully, and feloniously, with force and arms, in and upon the person of one Katherine Kline a female person who was not then and there the wife of the said August Seubert or Henry C. Rathjin make an assault on the said Katherine Kline, and then and there did willfully, unlawfully, and feloniously ravish and carnally know and accomplish with her an act of sexual intercourse by force and violence against her will and without her consent by overcoming her resistance and by threatening to do immediate and great bodily harm, the said defendants being then and there over the age of 14 years, and the said defendants did thereby and by said means commit the crime of rape in the first degree contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of South Dakota."
They jointly demurred to the information, which demurrer was overruled. Separate trials were granted. Seubert was first tried. Both were convicted and sentenced to imprisonment in the penitentiary for 12 years. Each defendant appeals from the judgment against him and from an order denying his motion for a new trial.
The most serious argument on each appeal is devoted to the alleged insufficiency of the information. It is first discussed in the assignment which predicates error in overruling the demurrer to the information. It is claimed that the information does not disclose which defendant committed the overt act of sexual intercourse; that the crime is one that is not susceptible of being committed jointly; that, if it was intended to charge each with the overt act of sexual intercourse, the information was bad for duplicity; that it is impossible to determine whether Seubert is charged as principal and Rathjin as accessory, or vice versa; therefore that the information is not direct and certain as to the party charged and as to the offense charged (Rev. Code 1919, § 4718); and that it does not disclose the nature and cause of the accusation against them (Const., art. 6, § 7).
The trial court did not err in overruling the demurrer. The information stated the nature and cause of the accusation, and it was sufficient as a pleading. State v. Comstock, 46 Iowa 265. There is nothing in State v. Stewart, 157 N.W. 1046, relied on by appellants, which in the slightest degree controverts the position here taken. The sufficiency of the information as a pleading was in no way involved in that case. Moreover, the information being good as to one defendant it was good as against both of them when challenged by a joint demurrer. Coffee v. Dorwart, 139 N.W. 776; Millerke v. Reiley, 141 N.W. 136.
Upon each of the trials the evidence on the part of the prosecution tended to show that Seubert and Rathjin forcibly took prosecutrix, who was a Russian girl 23 years of age, into their automobile from a street in Sioux Falls and drove into the country, going first to a dance hall and afterwards to a place where they took her from the car, and in the course of a few hours each had sexual intercourse with her three times, the one holding her arms while the other accomplished the acts, and that she at all times struggled and resisted without avail.
At the conclusion of the evidence in the Seubert case the record shows the following:
This may or may not have constituted an election to rely upon the specific acts of sexual intercourse claimed to have been done by Seubert, but for the purpose of this opinion we will consider that it did.
After the verdict, and before judgment, Seubert moved in arrest of judgment upon the grounds of the demurrer above referred to and upon the ground that he had been convicted because of his own acts of sexual intercourse, while the defendant Rathjin had been convicted because of his own acts of sexual intercourse, and upon the ground that he had not had a preliminary examination upon the charge under which the state elected to try him, which motion was overruled. The same questions were again raised upon the motion for new trial, which motion was overruled. The objection as to the lack of a preliminary examination was not available to Seubert. The printed record on his appeal shows that he waived preliminary examination. It was not the concern of Seubert whether or not Rathjin was convicted of another offense, even though it was under the same information. Seubert was convicted, under the above-assumed election, because of his own acts of sexual intercourse with the prosecutrix. His motion in arrest of judgment was properly denied, and his motion for new trial in that behalf was properly overruled.
In the Rathjin case a similar motion in arrest of judgment was made as in the Seubert case, except that it was therein stated that Rathjin was convicted because of his own acts of sexual intercourse. It is therefore claimed that, while in the Seubert case, Seubert was the principal and Rathjin the accessory, here Rathjin was the principal and Seubert the accessory,...
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