State v. Ruhaak, 7331.

• Decision Date: 29 March 1932
• Docket Number: No. 7331.,7331.
• Citation: 241 N.W. 793,59 S.D. 636
• Parties: STATE v. RUHAAK.
• Court: South Dakota Supreme Court

59 S.D. 636

241 N.W. 793

STATE

v.RUHAAK.

No. 7331.

Supreme Court of South Dakota.

March 29, 1932.

Appeal from Circuit Court, Union County; Ray E. Dougherty, Judge.

Albert Ruhaak was found guilty of the offense of rape, and, from an order granting a new trial, the state appeals.

Affirmed.M. Q. Sharpe, Atty. Gen., R. W. Ellis, State's Atty., of Elk Point, and Alan Bogue, of Parker, for the State.

Thomas McInerny, of Elk Point, for respondent.

CAMPBELL, P. J.

Defendant was found guilty by a jury of the offense of rape. Prosecuting witness was the adopted child of defendant's parents. Defendant was a man something over thirty, and the girl between fifteen and sixteen at the time of the offense, and she had been a member of the family for seven or eight years. It was her claim at the trial that defendant had been having intercourse with her regularly and frequently for several years. Defendant denied that he had ever been intimate with the girl, and claimed that she had been intimate with one Swenson and became pregnant as a result thereof and, Swenson being then absent, approached defendant for assistance; that he took her to consult a physician, to whom she told her story and to whom she stated that Swenson was the sole cause of her trouble. It was defendant's theory that the charge against him was utterly untrue and was a deliberate afterthought hatched up by presecutrix and her aunt (who had long been hostile to defendant's family) to protect Swenson. Prosecuting witness admits that she first accused Swenson, but she says that she did so at defendant's request and for his protection, and that such accusation was false.

Defendant at the trial made an offer to prove a number of matters concerning the Swenson situation when cross-examining prosecutrix. He also endeavored when on the stand himself to testify as to various matters in that connection. Both of these efforts were objected to and objection sustained.

Defendant moved promptly for new trial and brought his motion on for hearing within fifty days after the verdict of the jury, and the trial court, after having the matter under advisement for nearly two months, granted a new trial specifying as the grounds thereof, first, that he had unduly restricted the defendant's cross-examination of the prosecutrix; second, that he had improperly rejected evidence offered by defendant for the purpose of showing motive of the prosecutrix; third, that the evidence was insufficient to sustain the verdict; and, fourth, that he had erred to defendant's prejudice in restricting defendant's testimony upon his direct examination. From the order granting new trial the state has appealed.

[1][2] An order granting new trial should be sustained, if right on any ground presented and...