State v. Shields

• Decision Date: 08 January 1965
• Docket Number: No. 10119,10119
• Citation: 132 N.W.2d 384,81 S.D. 184
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. James SHIELDS, Defendant and Appellant.

Page 384

132 N.W.2d 384

81 S.D. 184

STATE of South Dakota, Plaintiff and Respondent, v. James SHIELDS, Defendant and Appellant.

No. 10119.

Supreme Court of South Dakota.

Jan. 8. 1965.

Austin, Hinderaker & Hackett, Watertown, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Alfred E. Dirks, Asst. Atty. Gen., Pierre, T. G. Ries, State's Atty., Watertown, for plaintiff and respondent.

HANSON, Judge.

Defendant was convicted of two counts of an Information charging the crime of indecent molestation of a child. The crimes were alleged to have been committed with the same minor girl on two separate and unrelated occasions. The girl was 13 years of age at the time of the offense alleged in Count I and 14 at the time of the offense alleged in Count II. The convicting evidence at the trial consists solely of complainant's testimony. Her testimony is sufficient to sustain conviction unless required to be corroborated.

The complaining witness voluntarily participated in the sexual acts and received $50 each time for her favors. Consequently, defendant contends she was an accomplice and her testimony needed corroboration to sustain conviction as required by SDC 1960 Supp. 34.3636 as follows: 'A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense * * *.'

Ordinarily, an accomplice is one who knowingly and with criminal intent participates, associates, or concurs with another in the commission of a crime. However, one who cannot be convicted of the same crime with which accused is charged is not an accomplice no matter how culpable his conduct in connection therewith, State v. Power, 74 S.D. 498, 54 N.W.2d 565. This is the generally accepted test for determining whether a witness is an accomplice whose testimony must be corroborated to sustain conviction of an accused. 14 Am.Jur., Criminal Law, Sec. 110, p. 840, 1A, Words & Phrases, p. 248 et seq.

In the prosecution of sexual offenses at common law the testimony of the prosecutrix was alone sufficient evidence to support a conviction. 7 Wigmore on Evidence Sec. 2061, p. 342. This commonlaw rule applies in South Dakota to the offense of statutory rape, State v. Rash, 27 S.D. 185, 130 N.W. 91, except when such testimony 'is unreliable, improbable, or where such witness has been fairly impeached', State v. Dachtler, 43 S.D. 407, 179 N.W. 653. Corroboration of the person injured is necessary in this state on a trial (1) for enticing away an unmarried female for the purpose of prostitution and (2) for seduction, SDC 1960 Supp. 34.3639. As in the case of statutory rape, however, there is no statutory requirement that the testimony of the prosecutrix be corroborated on a trial for indecent molestation of a minor. Such crime is defined by SDC 1960 Supp. 13.1727 as follows: 'Any person who shall willfully and unlawfully commit any lewd or lascivious act upon or with the body, or any part or member thereof,...