State v. Sysinger

• Decision Date: 02 March 1910
• Citation: 125 N.W. 879,25 S.D. 110
• Parties: STATE v. SYSINGER.
• Court: South Dakota Supreme Court

125 N.W. 879

25 S.D. 110

STATE v. SYSINGER.

Supreme Court of South Dakota

March 2, 1910

Appeal from Circuit Court, Brule County.

Henry Sysinger was convicted of rape in the second degree, and from the judgment of conviction and an order denying a new trial, he appeals. Affirmed.

S. H Wright, for appellant.

S. W Clark, Atty. Gen., Cloyd D. Sterling, Asst. Atty. Gen., and Clark S. Rowe, State's Atty., for the State.

CORSON J.

Upon an information duly filed by the state's attorney of Brule county, the defendant was tried and convicted of the crime of statutory rape, and from the judgment and order denying a new trial he has appealed to this court.

It is alleged in the information that the crime was committed on the 15th day of September, 1907, in the county of Brule. On the case being called for trial, the defendant's counsel interposed a challenge to one of the jurors on the ground that he was biased against the defendant. An examination was had of the juror, and the court at its conclusion held that he was a competent juror, and denied the challenge. This ruling of the court is assigned as error. We are of the opinion that the decision of the court was correct, and the challenge properly denied under the ruling by this court in the case of Haugen v. C., M. & St. P. Ry. Co., 3 S. D. 394, 53 N.W. 769. The question was so fully considered and discussed by the court in that case that we deem a further discussion of it at this time unnecessary. On the trial the complaining witness testified that she had sexual intercourse with the defendant on the 8th of November, 1907, in Brule county, in this state. The defendant objected to this evidence on the ground that it was alleged in the information that the offense was committed on the 15th day of September, 1907, and requested the court to require the state's attorney to elect upon what date he would rely in determining the time of the alleged offense. The court denied this request, and we think properly. By section 225 of the Code of Criminal Procedure it is provided that: "The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the filing thereof, except when the time is a material ingredient in the offense." In the crime of statutory rape time is not a material ingredient of the offense, and proof that the crime was committed within three years prior to the filing of the information is sufficient. Only one act of illicit intercourse had been shown as occurring in Brule county, and hence the request, assuming that such request could, in any case, be properly made, was properly refused by the court.

It is further contended by the appellant that the court erred in permitting the state's attorney to prove upon the trial, over the objection of the defendant, that several distinct acts of illicit intercourse were had between the defendant and the witness prior to the act proven to have been committed on the 8th of November, 1907. We are of the opinion, however, that the admission of this evidence did not constitute error, as an exception seems to be made in this class of cases, permitting such evidence to be given on the trial, on the ground that illicit intercourse between the defendant and the prosecuting witness occurring prior to the specific act charged in the information does not in effect establish a substantive offense upon which a conviction might be had, but is admitted on the same principle that evidence of antecedent conduct and demeanor of parties towards each other is admissible, as tending to show the probability of the commission of the specific act charged, and as corroborative of the testimony of the prosecuting witness. In 23 Am. & Eng. Ency. of Law, 882, the learned author of the article on rape, in discussing this question, says: "In prosecutions for the carnal knowledge of an infant under the statutory age of consent, the authorities are in conflict on the question whether the prosecution may show in evidence more than one act of sexual intercourse between the prosecutrix and the defendant. According to the better doctrine, it is held that such evidence is admissible, and should not be excluded on the ground that it tends to prove separate and distinct felonies." And in 33 Cyc. 1483, the law in such cases is thus stated: "In prosecutions for statutory rape on a female under the age of consent, or on a woman imbecile, it is generally held that proof of acts prior to that alleged in the indictment is admissible, unless they are too remote in point of time." And the rule as stated seems to be supported by a large number of authorities, a few of which we cite, as follows: State v. Fetterly, 33 Wash. 599, 74 P. 810; State v. Borchert, 68 Kan. 360, 74 P. 1108; Mitchell v. People, 24 Colo. 532, 52 P. 671; State v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880, 58 Am. Rep. 530; State v. Crouch, 130 Iowa, 478, 107 N.W. 173. In State v. Borchert, supra, the Supreme Court of Kansas held as appears by the headnote as follows: "In a prosecution upon a charge of statutory rape, where it is claimed that the act relied on for conviction was a part of a course of illicit sexual commerce between the defendant and the complaining witness, it is not error to admit evidence of other acts similar to that so relied on for the purpose of showing the relations existing between the parties." And the court in its opinion says: "The true rule is that testimony which is otherwise admissible as tending to prove the defendant guilty of the very crime charged is not rendered inadmissible by the fact that it also tends to show that he has committed some other crime. The real inquiry here is whether the evidence objected to did fairly tend to show that the defendant was guilty of the one criminal act for which he was prosecuted. The state offered it as supporting the charge by showing the previous relations between the defendant and the prosecuting witness. It is well settled that in prosecutions for a single act forming a part of a course of illicit commerce between the sexes it is permissible to show prior acts of the same character. *** Such cases are sometimes, as in State v. Markins et al., 95 Ind. 464, 48 Am. Rep. 733, said to form an exception to the general rule that one crime cannot be proved in order to establish another independent crime. In fact, however, they fall within the rule already stated. Such evidence is admitted, not because it proves other offenses, but in spite of that fact. Its justification is that it is corroborative of the direct evidence of the offense charged." While it is true in the case at bar that the prior acts occurred in the state of Ohio, and in Charles Mix county, in this state, yet they were none the less admissible because not occurring in Brule county.

It is further contended by the appellant that the court erred in permitting the prosecutrix to testify that she was in a family way as a result of her intercourse with the defendant. This evidence was clearly competent and admissible, and the ruling of the court is sustained by the authorities. 23 Am. & Eng. Ency. of Law, p. 881; Woodruff v. State, 72 Neb. 815, 101 N.W. 1114; People v. Flaherty, 27 A.D. 535, 50 N.Y.S. 574; State v. Robinson, 32 Or. 43, 48 P. 357.

It is further contended by the appellant that the court erred in permitting the state to introduce two letters in evidence alleged to have been written by the defendant to his wife and by her delivered to the prosecuting officers, on the ground that they were privileged communications. These letters were offered for the purpose of showing that the defendant in effect admitted his guilt, and as tending to corroborate the evidence of the complaining witness. We are of the opinion that these letters were properly admitted, and that after they left the hands of the wife of the defendant they ceased to be privileged, and therefore became competent evidence in the case. People v. Hayes, 140 N.Y. 484, 35 N.E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572; State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; 23 Am. & Eng. Enc. of Law, 97; State v. Buffington, 20 Kan. 599, 27 Am. Rep. 193; State v. Mathers, 64 Vt. 101, 23 A. 590, 15 L. R. A. 268, 33 Am. St. Rep. 921; Griffin v. Smith, 45 Ind. 366. In People v. Hayes, supra, the learned Court of Appeals of New York held as appears by the headnote: "Where a written confidential communication between a husband and wife is given to a third person by the one to whom it was addressed, and is thus made public, the protection given by the statute to such a communication is waived. It may be treated like any other communication, and put in evidence, if otherwise admissible." And the court in its opinion says: "The further ground of...