State v. Riordan

Decision Date03 March 1917
Citation36 N.D. 119,161 N.W. 606
CourtNorth Dakota Supreme Court
Syllabus by the Court.

Certain instructions examined, and held to be prejudicial.

Where a court gives an instruction to the jury on a point of vital importance to the defendant, in a criminal case, and in the instruction as to such point considers that point alone, and does not include consideration of the whole case and all the testimony of the case in connection with such instruction, it is held to be prejudicial error.

Appeal from District Court, Eddy County; C. W. Buttz, Judge.

James Riordan was convicted of rape, and from an order denying his motion for a new trial he appeals. Order reversed, and case remanded for a new trial.

Robinson, J., dissenting.N. J. Bothne, of New Rockford, for appellant. Wm. Langer, Atty. Gen., H. A. Bronson and D. V. Brennan, Asst. Attys. Gen., and R. F. Rinker and Orville W. Duell, both of New Rockford, for the State.


This is an appeal from the district court of Eddy county from an order denying a motion for new trial, the order bearing date July 19, 1916. This is a criminal case involving a charge of rape, and the information duly filed in said action is as follows, to wit:

“Information. R. F. Rinker, state's attorney in and for the county of Eddy and the state of North Dakota, in the name and by the authority of the state of North Dakota informs this court that heretofore, to wit: That on the 7th day of February, 1915, at New Rockford in said county and state the above-named defendant did commit the crime of rape committed as follows, to wit: That at said time and place the said defendant, James Riordan, did wrongfully, unlawfully and feloniously have sexual intercourse with Maggie Tiearney, an unmarried female under the age of eighteen years. This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of North Dakota. Dated this 19th day of May, 1915. R. F. Rinker, State's Attorney within and for Eddy County, North Dakota.”

To which information the appellant entered a plea of not guilty, which is as follows, to wit:

Appellant's Plea. Upon the above information the appellant was duly arraigned and entered a plea of not guilty, whereupon the case was tried before the court and a jury and resulted in a verdict of conviction.”

The complaining witness, Maggie Tiearney, resided in New Rockford, N. D., since the spring of 1914 with her folks. She became acquainted with the defendant on the 4th of July, 1914. The defendant was with the complaining witness on various occasions, but denies having any sexual intercourse with her. The defendant admits being with Maggie Tiearney, the complaining witness, on February 7, 1915, at the office of the Equity Elevator. He says that he was working for the company and had a key to the office and went in to fix the fire. The complaining witness testified that while in the Equity Elevator on the 7th day of February, 1915, she had sexual intercourse with the defendant and appellant herein; that said act was the main act and the one relied on by the state as constituting the crime of statutory rape. The complaining witness, Maggie Tiearney, also admits that she had sexual intercourse with another man some time prior to the time she met the defendant and appellant at the Allmaras farm in July, 1914. On the 24th day of October, 1915, the complaining witness gave birth to a child, and she testifies that the appellant was the father to this child. The defendant and appellant in his testimony denies each and every alleged act of sexual intercourse with the complaining witness. He also testified that he was born on the 25th day of July, 1895, and claims that at the time of the alleged intercourse on the 7th day of February, 1915, he was under the age of 20 years, or, in other words, was not at that time 20 years of age. Albert F. Riordan, the older brother of the appellant, testified as to the appellant's age and testifies that he was born July 25, 1895, and states that he can remember. (See statement of case, page 37.) Other witnesses also testified on behalf of the state on other matters, and the case was finally submitted to the jury on February 23, 1916, and the jury brought in a verdict of guilty.

Defendant and appellant then made the motion for a new trial upon the statement of the case which had been prepared and settled, which motion, as stated before, having been denied, the defendant duly prepared an appeal to this court and appealed to this court from the order of the district court of Eddy county denying appellant's motion for a new trial. The appellant makes 17 different assignments of error in his appeal to this court, but in the decision of this appeal we will consider only the thirteenth assignment of error, as we are of the opinion that for the purpose of this appeal the disposition of the thirteenth assignment of error will dispose of the appeal.

[1] The information was filed against the defendant under sections 9563 and 9567, Compiled Laws 1913, for the state of North Dakota. Appellant maintained at the time of the alleged offense on February 7, 1915, he was then under the age of 20 years. In section 9567, Compiled Laws 1913, it is provided in that act defining “rape” as follows:

“In all other cases rape is of the second degree, but no conviction can be had in case the female is over the age of sixteen years and the male is under the age of twenty years at the time of the act of intercourse, and it appears to the satisfaction of the jury that the female was sufficiently matured and informed to understand the nature of the act, and consented thereto.”

If the defendant was under the age of 20 years at the time of the alleged commission of the offense on February 7, 1915, he would not be guilty of the offense charged and would have been entitled as a matter of law to an acquittal of the crime charged in the information. The question, therefore, of whether or not the defendant was under the age of 20 at the time of the alleged commission of said crime on the 7th day of February, 1915, propounds a very important question in this case, even if it should be, as claimed by the state, only defensive matter. In order to fully comprehend the entire matter, it is advisable to revert to the scene of the trial. The trial commenced on the 21st day of February, 1915, and ended on the 23d day of February, 1915, and the case was given to the jury some time about the middle of the forenoon on February 23d, and the jury deliberated altogether about 14 hours. After the jury had deliberated on the case for over 12 hours, without having arrived at any verdict, they returned to the courtroom of their own volition, and...

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