State v. Sjoberg
| Decision Date | 26 January 1929 |
| Docket Number | 6600 |
| Citation | 223 N.W. 320,54 S.D. 375 |
| Parties | STATE OF SOUTH DAKOTA, Respondent, v. OSCAR SJOBERG, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Roberts County, SD
#6600—Affirmed
Turner & McKenna, Sisseton, SD
Attorney for Appellant.
Buell F. Jones, Attorney General
Bernard A. Brown, Assistant Attorney General, Pierre, SD
Attorneys for the State.
Opinion Filed Jan 26, 1929
The appellant was convicted of the crime of statutory rape, and he appeals from the judgment and from an order denying a new trial.
Appellant’s brief presents assignments of error as follows:
(1) That the trial court erred in allowing the witness Dr. Peterson to testify that, from his knowledge of medicine and obstetrics, and from his experience along that line, the usually accepted limitations of the period of gestation is anywhere between 250 and 290 days.
(2) That the trial court erred in refusing to strike out certain testimony of the prosecutrix relating to alleged acts of intercourse with the defendant at a time subsequent to that alleged in the information, and relied upon by the state.
(3) That the trial court erred in giving to the jury certain instructions objected to by the defendant, and in denying defendant’s request for the giving of certain instructions.
(4) That there was misconduct of the state’s attorney sufficient to entitle defendant to a new trial.
(5) That the evidence is insufficient to justify the verdict.
Believing that brevity and clearness will be enhanced by so doing, we will first consider the question of the sufficiency of the evidence.
The prosecutrix testified as follows: On July 24, 1926, she and the defendant were both present at a barn dance which was being held in the neighborhood in which they lived. Some time between midnight and 1 o’clock on the night of the dance defendant asked the prosecutrix to take a ride with him, and she consented.
The defendant drove up near the entrance of the dancing place in a certain Star coupe in which he had come to the dance and which he customarily drove. The prosecutrix got into the car with the defendant; he drove south about a half a mile, turned his car out of the road a little way, and there committed the act complained of. The parties then went back to the dancing place, and there remained until the dance ended. They had been acquainted for several years prior to this occasion, but had not “kept company” with each other. They did not come to the dance together nor go home together. On April 3, 1927, the prosecutrix gave birth to a male child, which seemed to be a normal child at the time of its birth, and which was present at the trial. Prosecutrix testified that defendant was the only man with whom she had intercourse.
One Dr. Peterson testified that he attended the prosecutrix at the time her child was born, that it appeared to be a normally developed infant, and that the usually accepted period of gestation is from 250 to 290 days.
Three witnesses testified that they saw the prosecutrix get into the defendant’s car at the time and place testified to by her, and that they saw the car return and defendant and prosecutrix get out of it 20 or 30 minutes after it was driven away.
The facts that both parties were at the dance on the night of July 24, 1926, that defendant came in his Star coupe, that the parties did not come together or go home together, that prosecutrix was not the wife of the defendant, that she was under the age of consent, and that she gave birth to a child on April 3, 1927, are not disputed.
Defendant denied that he took the prosecutrix riding on the night of the dance, or that he ever had sexual intercourse with her. Several of defendant’s witnesses disputed the testimony that defendant’s car was driven away from the dancing place during the night of the dance. Some of the defendant’s witnesses testified that the night was so dark that those who testified as to seeing defendant’s car go away and return could not have seen what they testified they had seen. A doctor called on behalf of the defendant testified that the normal period of gestation is 280 days, that, if a birth took place 253 days after conception, it would be an unusual case, and that he would expect that the child would not be fully developed.
While the record shows a sharp conflict of evidence, the state’s evidence, if believed by the jury, amply supports the verdict, and the credibility of witnesses and the weight of the evidence are questions for the jury.
As to the evidence given by Dr. Peterson, this witness qualified as a graduate physician, licensed to practice in this state. Throughout the trial, defendant’s counsel contended that the child born only 253 days after July 24, 1926, could not have resulted from intercourse had when prosecutrix testified to intercourse with the defendant. When a question of this kind is at issue, evidence such as that given by Dr. Peterson is properly admitted. Kesselring v. Hummer, 130 Iowa 145, 106 N.W. 501; Souchek v. Karr, 78 Neb. 488, 111 N.W. 150; Masters v. Marsh, 19 Neb. 458, 27 N.W. 438; Sang v. Beers, 20 Neb. 365, 30 N.W. 258; Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382; In re McNamara’s Estate, 181 Cal. 82, 183 P. 552, 7 ALR 313.
As to the trial court’s refusal to strike out the evidence of the prosecutrix as to intercourse with defendant after July 24, that evidence was elicited by defendant’s counsel on cross-examination, and before the motion to strike was made defendant had testified that no such intercourse took place. Under such circumstances, the motion was properly denied.
As to the instructions given by the court and objected to by the defendant, we deem it necessary to consider only two of these instructions. The court gave the following instruction: “The Court instructs the jury in this connection that if you believe that any witness in this case has knowingly sworn falsely to any material matter in this case, you may reject all of the testimony of any such witness.”
Defendant’s objection to this instruction was based upon the theory that the instruction should be qualified by stating that the jury might reject all the testimony of such witness except such portions as were corroborated by other substantial evidence.
This court has established the rule in this state to be that no such qualification is required where the instruction as given limits its effect to the testimony of witnesses whom the jury believes to have “knowingly” or “willfully” testified falsely. State v. Sexton, 72 N.W. 84; Hurlbut v. Leper, 81 N.W. 631; State v. Raice, 123 N.W. 708.
The court also instructed the jury that, “as it is not disputed that Tillie Johnson was never...
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