State v. Smith

• Decision Date: 31 August 1904
• Citation: 100 N.W. 740,18 S.D. 341
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. BERT SMITH, Plaintiff in error.
• Court: South Dakota Supreme Court

18 S.D. 341

100 N.W. 740

STATE OF SOUTH DAKOTA, Defendant in error,

v.

BERT SMITH, Plaintiff in error. South Dakota Supreme Court Error to circuit court, Lawrence County, SD Hon. W. G. Rice, Judge Affirmed Joseph B. Moore Attorney for plaintiff in error. Philo Hall, Atty. Gen. Attorney for defendant in error. Opinion filed August 31, 1904

FULLER. J.

At the trial of the plaintiff in error under an information charging the crime of rape upon Amy Dotson, a female under the age of consent, he was convicted of an assault with the intent to commit rape, and it is claimed that the errors of law relied upon for a reversal are similar to those presented by the record in the case of State v. Mulch,(1903). In that case the prosecutrix, Amy Dotson, was corroborated by the testimony of Lillian McCormick, who swore that she was present, and witnessed the criminal act with which Mulch stood charged. This McCormick woman and one William Quirk were both present at the time and place laid in the information against plaintiff in error, and gave evidence at the trial on behalf of the prosecution which tended to corroborate the testimony of the prosecuting witness. It may be assumed that for the purpose of showing the improbability of the alleged criminal act, and as a circumstance tending to impeach the testimony of the prosecutrix, the witness Lillian McCormick was asked on cross-examination whether the accused, upon being importuned by the prosecuting witness to have sexual intercourse with her, did not say in substance, then and there, that he had been informed that she was infected with a loathsome, venereal disease, and refuse to have anything to do with her. If it was error for the court to sustain an objection on the ground that the foregoing was not proper cross-examination, such error was rendered harmless because this same witness was called for the defense shortly afterward, and in response to the identical question answered, “I don’t remember about that.” Moreover, the defendant testified fully upon the subject, and all that he desired to say went to the jury without any objection. For the avowed purpose of disgracing the prosecuting witness, and with a view to discrediting her testimony, she was interrogated on cross-examination with reference to being a common prostitute, infected with the disease above mentioned, and was asked, in substance, if she had not complained to the mayor and chief of police, and given them the names of a large number of men with whom she had been sexually criminal. Such inquiry, as well as testimony of similar character, sought to be elicited from other witnesses, being improper, and subject to the objection interposed by counsel for the state, there is no merit in the contention that its exclusion was erroneous. Under our statute it is rape to carnally know a female child under the age of 16 years, either with or without her consent, and no evidence of specific acts of similar unchaste conduct with men other than the accused is admissible to show consent or for the purpose of further disgracing the child, or as bearing upon the credibility of her testimony. In the case of People v. Johnson, 106 Cal. 2819, 319 Pac. 622, the court say:

“The prosecuting witness is under the age of consent, and for this reason evidence either of general reputation or specific act would seem to be immaterial. This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix; for it is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to consent than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed. In other words, this class of evidence goes to the question of consent only, and in a case like the present the question of consent is not involved. … Sound reason declares that such of necessity must be the rule. If this class of evidence was admissible as going to the credibility of the testimony of the prosecutrix in its entirety, then it would be equally admissible as against the veracity of any...