State v. Schweitzer

• Decision Date: 10 November 1969
• Docket Number: No. 10677,10677
• Citation: 171 N.W.2d 737,84 S.D. 384
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Gary SCHWEITZER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 737

171 N.W.2d 737

84 S.D. 384

STATE of South Dakota, Plaintiff and Appellant, v. Gary SCHWEITZER, Defendant and Respondent.

No. 10677.

Supreme Court of South Dakota.

Nov. 10, 1969.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, Larry F. Hosmer, State's Atty., Yankton, for plaintiff and appellant.

James E. Doyle, Yankton, for defendant and respondent.

PER CURIAM:

Defendant, one of four men charged with rape in the first degree, made a motion, supported by affidavits of two defendants and their attorney based on information and belief, that the complaining witness be examined by a psychiatrist to be selected by defendant. At a hearing October 8, 1968, where both defendant's attorney and the State's attorney appeared and the latter made no showing, the trial court entered an order which denied defendant's motion, but 'on its own motion' then ordered the complaining witness to submit herself for such an examination by a psychiatrist designated by the court. On October 24th the State gave notice of a hearing on October 30th of a motion, supported by affidavits, to quash the order requiring the examination at which time no representative of the State appeared and on January 24, 1969, the court entered an order denying the State's motion. Appeal by the State was permitted as provided by SDCL 1967, 23--51--5.

This court in State v. Klueber, 81 S.D. 223, 132 N.W.2d 847, reviewed the authorities and wrote that such examinations should be granted "only upon a substantial showing of need and justification.' * * * the moving party's burden is not light.' Here, as was said in Klueber, defendant's showing 'falls far short of this requirement.' The court therefore was correct in denying defendant's motion.

However, the court then had no authority on its own motion to enter the part of the order stated above requiring the complaining witness to submit to the examination. Defendant's motion was limited to the examination by a psychiatrist selected by defendant. See 37 Am.Jur., Motions, Rules and Orders, § 10, p. 506; Kladivo v. Hospodarsky, 188 Iowa 1208, 177 N.W. 467; In re Nairn's Estate, 215 Iowa 920, 247 N.W. 220; Vore v. State, 158 Neb. 222, 63 N.W.2d 141. Such action does not come within the rule permitting a court to act sua sponte, 37 Am.Jur., ibid, § 26, or during trial. Behringer v. Muchow, 72 S.D. 80, 30 N.W.2d 5. In result the ruling applies Wigmore's recommendation announced in his Treatise on Evidence, 3rd Ed., § 924a, which the court rejected in Klueber as not necessary or advisable. ¹

It is not necessary to discuss the point as to whether the trial court gave consideration on the motion to quash to affidavits neither served (see SDCL 1967, §§ 23--1--3 and 15--6--6(d) and 37 Am.Jur., Motions, Rules and Orders, § 11) nor mentioned in the order denying the State's motion to quash, but later made a part of the settled record or to the suggestion made at oral argument of a change of circumstances which would obviate the necessity of the order appealed from for the reason a different record may be presented in further proceedings. In view of the record before us the State's motion to quash the prior order should have been granted. 37 Am.Jur., Motions, Rules and Orders, § 32. The order appealed from is reversed. ²

ROBERTS, J., concurs in result.

HANSON, J., dissents.

HANSON, Judge (dissenting).

In my opinion this matter should be remanded to the trial court for further proceedings or the appeal should be dismissed as improvidently granted for the following reasons:

I. The State's application to dismiss the order for a psychiatric examination of the complaining witness was set for hearing on October 30, 1968. At the time of hearing no one appeared for or on behalf of the State. Defendant appeared and was prepared to supplement his request for the order requiring a psychiatric examination of the complaining witness. Defendant's supplemental affidavits, dated October 30, 1968, show:

a. The complaining witness testified falsely at the preliminary hearing concerning prior psychiatric care;

b. The complaining witness had received treatment for mental illness on an initial complaint of 'sex and marital difficulties' and was taking drugs for her condition;

c. She was in need of further treatment, but withdrew from the South Dakota Mental Health Center;

d. According to the Director of the Mental Health Center the complaining witness could, in his opinion,...