State v. Thompson

• Court: South Dakota Supreme Court
• Citation: State v. Thompson, 71 S.D. 319, 24 N.W.2d 10 (S.D. 1946)
• Decision Date: 19 August 1946
• Docket Number: 8838.
• Parties: STATE v. THOMPSON.

24 N.W.2d 10

71 S.D. 319

STATE v. THOMPSON.

No. 8838.

Supreme Court of South Dakota

August 19, 1946

[Copyrighted Material Omitted]

Wm. Holland, of Webster, and E. B. Harkin, of Aberdeen, for appellant.

George T. Mickelson, Atty. Gen., E. D. Barron, Asst. Atty. Gen., and Elmer Engebretson, State's Atty., Day County, of Webster for respondent.

RUDOLPH Presiding Judge.

The defendant, Clifford Thompson, was convicted of first degree rape and has appealed. Certain of the facts are undisputed. The defendant is a farmer living about 1 1/2 miles east of Webster, South Dakota. At the time of the alleged offense he was 32 years of age and had a family of his wife and two children, aged 2 and 6. The complaining witness Alice Kwasniewski, was 16 years of age and resided with her parents in Webster. She attended high school and took employment caring for children evenings. During the afternoon of the 12th of June, 1944, Mrs. Thompson, wife of the defendant, made arrangements with the mother of Alice that Alice go to the Thompson farm and take care of the children while the parents went to a dance at Waubay. About 9 o'clock that evening Mr. and Mrs. Thompson drove to Webster and took Alice back to the Thompson farm. The Thompsons left for the dance and Alice remained to care for the children; they returned from the dance sometime after 3 a. m. on the morning of the 13th of June. The dispute in the testimony arises at this point. The complaining witness testified that when the Thompson returned from the dance Mrs. Thompson remained at the Thompson home and the defendant took her to her home in Webster. The alleged attack, according to the complaining witness, occurred at a point between the Thompson home and Webster. About 6 o'clock a. m. the sheriff of Day County found the defendant asleep in his car at an intersection at the north city limits of Webster. The defendant and his wife gave an entirely different story regarding the trip from the Thompson home to Webster. They testified that when they returned after the dance the youngest child was awake and crying. The defendant suggested to Mrs. Thompson that she ride into Webster with him for the purpose of getting the baby to sleep, which she did. Both testified that the trip from the Thompson home to the Kwasniewski home was uneventful but that after leaving the Kwasniewski home the tire on the car became flat and that it was necessary to stop at the point where defendant's car was observed the next morning in order to repair the flat tire. Mrs. Thompson testified that she was worried about the other child who was left at the Thompson home and rather than wait for the tire to be repaired proceeded to walk a distance of approximately two miles to the Thompson home and carried the two-year old child. It had rained during the night and more than a mile of this walk was over a muddy dirt road. Defendant testified that after fixing the flat tire he apparently flooded the carburetor and was unable to get the car started and fell asleep in the car where he remained until awakened by the sheriff at 6 o'clock in the morning.

At the trial of the action defendant was cross-examined with reference to certain testimony given by his wife at the preliminary hearing. This cross-examination is assigned as error. In this connection the facts disclose the following: Defendant was being cross-examined about the time he first learned that an accusation had been made against him and stated that it was the morning following the alleged incident when Alice's mother called his wife and in answer to the question 'What was it that your wife told you that she had a talk with Mrs. Kwasniewski about?', testified: 'All right, I will tell you. She told me that Mrs. Kwasniewski had talked to her and she said that Mrs. Kwasniewski told her unless you come in and pay us something we will have your husband arrested. There you are.' Following this answer by the defendant he was cross-examined as follows:

'Q. Did your wife testify at the preliminary examination on the 21st of June, 1944 before Frank Gruby a justice of the peace at Webster in this case? A. I heard part of the testimony, I was taking care of the children part of the time.

'Q. You say there was some testimony you didn't hear? A. Yes, I don't think I heard it all.

'Q. Isn't it a fact that your wife testified? A. Yes.

'Mr. Harkin: This is an attempt to introduce proposed declaration or declarations of a third party made not in the presence of this witness. It is immaterial, the question is inadmissible and should be taken up in the absence of the jury.

'The Court: You may proceed Mr. Barron subject to Mr. Harkin's motion to strike.

'Mr. Harkin: This court is now ruling that what his wife said at a former trial is admissible?

'The Court: Yes.

'Q. Referring to the preliminary examination before Justice Gruby I will ask you if this question was asked your wife who was a witness and hearing this answer to the following question.

'Mr. Harkin: May I ask a question to lay a foundation for an objection?

'The Court: You may.

'By Mr. Harkin: Q. Were you present at any time during any of these conversations between Mrs. Kwasniewski and Mrs. Thompson? A. I was not present.

'Mr. Harkin: We now object that whether this related to Mr. Thompson or otherwise is inadmissible because not made in his presence and cannot be used in the way of an attempt to impeach this witness.

'The Court: It may be admitted.

'(Exception noted and allowed.)

'Q. This question was asked your wife and I am asking if you heard it at the preliminary examination: 'Q. Did Mrs. Kwasniewski call you by telephone on the morning of June 13th?' Did you hear that question asked your wife? A. I believe I did.

'Q. And her answer was yes? A. I believe it was.

'Q. 'Q. What did she say? A. She asked me if I was coming to town that afternoon and I said 'Yes, I will come in if you want me to." Did you hear her make that statement? A. I don't remember that.

'Q. Did you hear this question and this answer. 'Q. What did Mrs. Kwasniewski say to you when you got to the Kwasniewski home?'

'Mr. Harkin: We desire to make an objection and desire to object to the reading of this in the presence of the jury for the reason it is simply for the purpose of making a statement and getting it before the jury and taking chances on its being stricken out; it is immaterial and should not be had in the presence of the jury until the Court has made up his mind what the final ruling will be. Even if stricken out it is hard for the jury to sort it out. I think the Court should definitely make his ruling as to all of these statements.

'The Court: 'Objection overruled.

'(Exception noted and allowed.)

'Mr. Harkin: We now object to the reading of the transcript any further in the presence of the jury.

'The Court: Objection overruled. Your objection may stand to all of this.

'(Exception noted and allowed.)

'Q. Did you hear this question asked your wife at that time? 'Q. What did Mrs. Kwasniewski say to you when you got to the Kwasniewski home? A. She said, 'I didn't think that of your man." Did you hear her make that answer to that question' A. I just couldn't say that I remember that.

'Q. 'Q. Then what did you say?' Did you hear that question asked her? A. I don't know.

'Q. Did you hear her answer 'What is the matter?' Did you hear that answer? A. Read that again.

'Q. 'Q. What is the matter?' This is the question I am asking you, I am asking you if you heard this question asked your wife. 'Q. Then what did you say?' I am asking you if you heard that question asked your wife on preliminary examination. A. I don't remember.

'Q. Did you hear her make this answer to that question. 'A. She said he had raped her daughter that night on the way to town.' Did you hear that answer? A. No, I don't remember it.

'Q. Did you hear your wife testify all through that preliminary examination? A. I was taking care of the children as I told you and I got a little of it but I didn't get it all clear and I can't say just what I heard or didn't hear.

'Q. Did you hear her tell anybody at any time during that preliminary examination that Mrs. Kwasniewski had demanded money of you?

'Mr. Harkin: That is objected to as not proper and an attempt to get in a detailed conversation indirectly which if testified to by the parties themselves or admitted they could not get in in any other manner for the reason they are not impeaching this defendant.

'The Court: Objection overruled.

'(Exception noted and allowed.)

'A. No, I didn't hear that.

'Q. You have never made that statement in court before you made it today? A. I never was asked.

'Q. You never, made the statement? A. No.

'Q. You never made that claim before? A. I have never been asked that.'

We are of the opinion that this examination of the defendant was error. Obviously, what his wife said at the preliminary hearing was not binding upon him as to his conduct or acts on the night in question. Neither do we believe that this examination was competent to impeach the defendant. Apparently the state was seeking to impeach the statement of the defendant to the effect that his wife told him Mrs. Kwasniewski was asking for money, but we fail to see how conversation between Mrs Thompson and Mrs. Kwasniewski as testified to by Mrs. Thompson at the preliminary hearing would serve any such purpose. Even conceding that it might be shown that Mrs. Thompson had never stated in previous hearings or trials that Mrs. Kwasniewski had demanded money, it was entirely improper to and unnecessary to ask for the details of the conversation between Mrs. Thompson and Mrs. Kwasniewski as testified to by Mrs. Thompson. This examination seems to be a deliberate...