State v. Rice

• Decision Date: 25 May 1918
• Citation: 168 N.W. 369,39 N.D. 597
• Parties: STATE v. RICE.
• Court: North Dakota Supreme Court

39 N.D. 597

168 N.W. 369

STATE

v.RICE.

Supreme Court of North Dakota.

May 25, 1918.

Syllabus by the Court.

Instructions of the court examined, and held to contain no reversible error.

Remarks of the state's attorney in the opening and closing argument examined, and held not to be prejudicial.

Additional Syllabus by Editorial Staff.

Where defendant to an information for crime entered a plea of not guilty, it was incumbent on the state to prove each and every allegation in the information to the satisfaction of the jury beyond a reasonable doubt.

The charge of the court must be considered as a whole, and the parts thereof relating to the same matter must be construed together.

It is a general rule in criminal cases that the commission of other similar offenses by defendant is inadmissible to show that he has a criminal tendency, in order to show that he probably committed the offense charged, though there is apparent exception to the rule as applied to sexual crimes.

Evidence held to sustain a conviction of rape in the first degree.

Appeal from District Court, Ward County; K. E. Leighton, Judge.

Aulden Rice was convicted of rape in the first degree, and he appeals, and from an order denying his motion for new trial he appeals. Order affirmed.

Bradford & Nash, of Minot, and Ben E. Combs, of Donnybrook, for appellant. Wm. Langer, Atty. Gen., and O. B. Herigstad, State's Atty., and R. A. Nestos, Asst. State's Atty., both of Minot, for the State.

GRACE, J.

The appellant was tried and convicted in the district court of Ward county, on July 18, 1917, of the crime of rape. The information in the case was in proper and legal form and charged the defendant with the crime of rape in the first degree. The information alleged that the crime was committed on the 22d day of April, 1916. The charging part of the information is as follows:

“That at said time and place the said Aulden Rice did willfully, unlawfully and feloniously have and accomplish an act of sexual intercourse with Eva O'Shea, a female person under the age of eighteen years, to wit, fourteen years of age, and not then and there the wife of the said Aulden Rice, and that the said Aulden Rice was then and there more than twenty-four years of age.”

[3] To the information the defendant entered a plea of not guilty. It thus became incumbent on the state to prove each and every allegation in the information, to the satisfaction of the jury, and beyond a reasonable doubt.

[1][2] The defendant, having been found guilty by a verdict of the jury, made a motion for a new trial, which was denied by the court, and defendant appeals from the order denying such motion and makes six assignments of error and four specifications of particulars in which it is claimed the verdict is not sustained by the evidence, all of which may be considered under two heads: First, the charge of the court relating to the time of the commission of the crime; and, second, the failure of the court to compel the state to elect upon which of the many acts of sexual intercourse shown in the testimony the state would elect to rely; and in connection with these matters may be considered remarks of Attorney Nestos, then prosecuting attorney, who, it is claimed, at the time of the opening argument made the statement that the time of the commission of the offense was immaterial, so long as the offense was proved to have been committed at any time within three years prior to the filing of the information, which was July 16, 1917, which statement was reiterated by Mr. Nestos in his closing argument. The defendant's counsel Mr. Nash stated, in reply to Mr. Nestos, that time was material, and that the state must rely for conviction upon the offense charged in the information, which would be the first clear-cut offense proven. After all the testimony was in, both for the state and defendant, and at the time of the making of such remarks by Mr. Nestos, defendant's counsel objected, and at that time requested the court to compel the state to elect upon which offense it would stand for a conviction. The court denied this request of the defendant.

The only witnesses testifying were Eva O'Shea, the complaining witness, and the defendant. Eva O'Shea testified as follows:

“My name is Eva O'Shea. I was 15 years old May 18, 1917. I have lived for the last few years in Ward county, at Benedict and Aurelia. In March, April, and May of 1916, I resided with my stepfather, Aulden Rice, the defendant in this case, and my mother. Q. During the month of April, 1916, did this defendant, Aulden Rice, have sexual intercourse with you? A. Yes, sir. Q. Where did that take place? A. Behind the house and behind the barn in the pasture on the farm where we were then living in Ward county, N. D., about 2 1/2 miles from Aurelia. Q. Had you had sexual intercourse with Aulden Rice, the defendant in this case, before the month of March, 1916? A. Yes. Q. On many occasions? A. Yes, sir. Q. When did these acts (of sexual intercourse) first occur with your stepfather, Aulden Rice? A. When I was about 10 years old. Q. That would be about 5 years ago? A. Yes, sir. Q. And did the acts continue off and on from that time until the month of May, 1916? A. Yes. My child was born January 22, 1917. Aulden Rice is the father of that child. Aulden Rice, the defendant, is 28 or 29 years of age.”

The complaining witness further testified that she was pregnant in February or March, 1916, and that Aulden Rice gave her medicine to drive the child away; that he had intercourse with her afterwards. She testified that she had intercourse with her stepfather twice in February, 1916, and afterwards testified that she had intercourse with him more than twice during the month of February, 1916. She also testified that she had intercourse with others than Aulden Rice in the month of March; that she had intercourse in February with Jesse Fulton more than once, but all on the same occasion; and that she did not have intercourse with any one else other than Fulton and her stepfather in February. She testified in March she had intercourse with her stepfather, and with Oscar Edland before March 27th. She also testified that she had intercourse with Jesse Fulton, and that she endeavored to blame the parentage of her child on Jesse Fulton in order to save her stepfather.

The abstract of the case shows the following:

“That Aulden Rice, the defendant, being first duly sworn, testifying in his own behalf, denied the various acts of sexual intercourse hereinbefore set forth in the testimony of the complaining witness. On cross-examination his testimony corroborated the testimony of Eva O'Shea, the complaining witness.”

As the testimony of the defendant on cross-examination corroborated the testimony of Eva O'Shea, he must have admitted the acts of sexual intercourse with her, testified to by her. The transcript of the testimony has not been returned to this court, and the statement of such corroboration of the complaining witness' testimony must be taken at full value. All this testimony shows the commission of many acts of sexual intercourse between the plaintiff and defendant, other than that alleged in the information. At the time of the admission of all such testimony relative to other acts of sexual intercourse than that set forth in the information, which was on the 22d day of April, 1916, the defendant made no objection, on the theory that the testimony of all such other acts of sexual intercourse was admitted simply and only for the purpose of corroboration, and that for this purpose the defendant did not object to the introduction of such testimony of such other acts of sexual intercourse, and in his brief says that:

“The several other acts of sexual intercourse were properly admitted in evidence as corroborative of the offense set forth in the information, and there was no objection on the part of the defendant's counsel to the proof of such acts for such limited purposes.”

The defendant claims that by reason of the remarks made by the state's attorney Mr. Nestos that the time of the commission of the offense was immaterial so long as committed within three years, and the instructions of the court in one paragraph of his instructions to this same effect, changed the purpose for which...