State v. Schell, 108.
| Decision Date | 03 October 1934 |
| Docket Number | No. 108.,108. |
| Citation | 65 N.D. 126,256 N.W. 416 |
| Parties | STATE v. SCHELL. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In a prosecution for rape upon one under the age of consent, evidence of prior acts of intercourse by the defendant with the prosecutrix is admissible.
2. Error cannot be predicated upon the refusal of the court to advise the jury to return a verdict of not guilty in a criminal case, as the jury is not bound by such advice.
3. In the instant case it is held that the evidence is sufficient to sustain a verdict of guilty.
4. Certain assignments of error predicated upon the instructions to the jury are considered and, for reasons stated in the opinion, held not well founded.
5. Under the laws of North Dakota, all instructions to the jury in a criminal case must first be reduced to writing, unless by consent of both parties entered in the minutes the instructions are given orally and taken down by the stenographer of the court in shorthand (C. L. 1913, § 10822); but if there is disagreement between the members of the jury as to any part of the testimony, or if they desire to be informed on a point of law arising in the cause after they have retired for deliberation, and the jury is brought into court for further information, the court is not required to reduce to writing the information which he gives to the jury; but such information can be given “only in the presence of, or after notice to the state's attorney and the defendant and his counsel, or after they have been called” (C. L. 1913, § 10871).
Appeal from District Court, McIntosh County; McKenna, Judge.
Wendelin Schell was convicted of rape in the second degree, and appeals from the judgment of conviction and from an order denying a new trial.
Affirmed.Alvin C. Strutz and Robert A. Birdzell, both of Bismarck, for appellant.
P. O. Sathre, Atty. Gen., Max A. Wishek, State's Atty., of Ashley, and J. K. Murray, of Mott, for the State.
The defendant was convicted of rape in the second degree, and appeals from the judgment of conviction and from the order denying his motion for a new trial.
The first assignments of error are predicated on rulings on evidence. The prosecutrix was permitted to testify concerning certain alleged acts of illicit intercourse between her and the defendant at times prior to the one which forms the basis of the charge in the information. Apparently appellant's counsel does not deny that evidence of prior acts is admissible; but it is claimed that in this case undue emphasis was placed on these acts, and that altogether too much of the testimony of the complaining witness related thereto.
[1] It is well settled that in prosecutions for rape upon one under the age of consent, acts of sexual intercourse between the parties prior to the act charged in the indictment or information may be given in evidence as tending to sustain the principal charge by showing the relation and intimacy of the parties, their disposition and antecedent conduct toward each other, and as corroborative of the testimony of the prosecutrix touching the particulars relied upon for a conviction. State v. Marty, 52 N. D. 478, 491, 203 N. W. 679; 22 R. C. L. 1205; Underhill's Cr. Ev. (3d Ed.) § 156. We are aware of no rule or reason requiring that the testimony of the prosecutrix be restricted as regards such prior acts. In the very nature of things, if her testimony were restricted to a lesser number of acts than those which actually took place, the jury would not be afforded a true picture of the relations between the parties. The evidence of the prior acts was admissible, and there is nothing in the record to show that it was admitted or permitted to be considered by the jury for purposes other than those for which the evidence was properly admissible. In its instructions the trial court limited the effect of the evidence and the purpose for which the jury might consider it.
[2][3] The next assignment of error challenges the correctness of rulings made by the trial court in overruling defendant's motion to direct a verdict of not guilty made at the close of the state's case and again at the close of all the evidence. The assignments are not well founded. Under our laws the trial court may not direct a verdict in a criminal action. It may only advise the jury to return a verdict of not guilty, but the jury is not bound by the advice; consequently the trial court committed no error in denying these motions. State v. Wright, 20 N. D. 216, 126 N. W. 1023, Ann. Cas. 1912C, 795;State v. Albertson, 20 N. D. 512, 128 N. W. 1122. See, also, State v. Drapeau, 45 S. D. 507, 189 N. W. 305. Furthermore, the evidence in this case was sufficient to require that the case be submitted to the jury, and it is sufficient to sustain the verdict which was returned. The prosecutrix testified positively that the defendant had illicit sexual relations with her on the date charged in the information, and the undisputed evidence is to the effect that at that time the complaining witness was under eighteen years of age and the defendant over twenty years of age and that the prosecutrix was not the wife of the defendant.
[4] Error is also assigned on the court's instructions to the jury. In the course of the instructions the trial court referred to the testimony of the defendant and his denial of all sex relations with the prosecutrix. At the conclusion of a narration of the defendant's testimony the court stated: “ Now, of course, if you believe that the evidence of the defendant establishes these facts, then it will be your duty to find the defendant not guilty, or if the state has failed to prove him guilty beyond a reasonable doubt, then it is your duty to find him not guilty.”
It is asserted that the italicized portion of this instruction is erroneous and that it in effect placed the burden of proof upon the defendant. While the instruction is not phrased in the happiest language and standing alone might be susceptible of the construction suggested, when it is considered in light of the circumstances in which it was given and the other instructions given by the court, we do not believe that it could possibly have resulted in any prejudice to the defendant. The language to which objection is made was used after the court had narrated the testimony of the defendant. In the testimony so narrated the defendant had denied all illicit relations with the prosecutrix and it was with reference to this that the trial court stated that if the jury believed the defendant's testimony it would be their duty to find him not guilty. This, of course, was strictly correct. If they believed his testimony they must find the defendant not guilty. The court did not say or intimate that if they disbelieved or doubted defendant's testimony they would be warranted in finding him guilty. On the contrary, immediately following the language to which objectionis taken the court stated: “or if the state has failed to prove him guilty beyond reasonable doubt, then it is your duty to find him not guilty.”
Elsewhere in the instructions the court stated:
“When the defendant was arraigned under this information he entered a plea of not guilty, which plea makes it incumbent upon the state to prove all of the material allegations of the information to be true to your satisfaction beyond a reasonable doubt. If the state has done this, then it is your duty to find the defendant guilty. If the state has not done this, then it is your duty to find the defendant not guilty.
The defendant comes into court clothed with the presumption of innocence. Every person accused of crime is presumed to be innocent, and such presumption continues in his favor until proof of his guilt is established by competent evidence beyond a reasonable doubt.”
“I have instructed you that the burden of proof is upon the state to establish the truth of each material allegation of the information beyond a reasonable doubt before you can find the defendant guilty as charged.”
(Then follows a recital of the material allegations of the information, among which is the following: “That on or about the 2nd day of August, 1932, in this county of McIntosh and State of North Dakota, the defendant, Wendelin J. Schell, had sexual intercourse with the said LaVern Giedt.”)
[5] The next and the final assignments of error are predicated upon certain proceedings had after the case had been submitted to the jury. The record discloses that after the jury had deliberated for some time they were brought into court and reported they were unable to agree on a verdict. The court inquired whether they desired further instructions or if there was anything they desired to state. The foreman replied: The court stated that he did not understand the situation that was troubling the jury and asked whether the jurors were disagreed as to what the testimony was. The foreman answered that it was “something like that.” Thereupon the court asked if there was any testimony that they desired to have read and, if so, the court...
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State v. Thompson
...he deems the evidence insufficient; but the jury is not bound by such advice. State v. Farrier, 61 N.D. 694, 240 N.W. 872;State v. Schell, 65 N.D. 126, 256 N.W. 416. Error cannot be predicated upon the denial of defendant's motion to dismiss the case at the close of the State's testimony. S......