State v. Tiedemann, 10190
| Decision Date | 09 June 1961 |
| Docket Number | No. 10190,10190 |
| Citation | 362 P.2d 529,139 Mont. 237 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Donald W. TIEDEMANN, Defendant and Appellant. |
| Court | Montana Supreme Court |
William A. Brolin, Anaconda, argued orally for appellant.
Forrest H. Anderson, Atty. Gen., Emmet T. Walsh, County Atty., Robert T. O'Leary, Asst. County Atty., Anaconda, Alfred Coate, Donald A. Douglas, Asst. Attys. Gen., for respondent. Donald A. Douglas argued orally.
The defendant was charged with, tried and convicted of the offense of attempted rape, a felony, upon a female child under the age of eighteen years.
The defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.
The State has filed a motion to dismiss the appeal and to strike the defendant's third specification of error on the grounds that the appeal was not taken within sixty days after the order denying the defendant's motion for a new trial, as required by R.C.M.1947, § 94-8105, and that the defendant's third specification of error can be reviewed only on appeal from an order denying a new trial, since it raises the question of the sufficiency of the evidence.
Section 94-8209, R.C.M.1947, states:
'Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.'
In considering certain applications of this statute a distinction must be made between the sufficiency of the evidence and a total failure of proof, the latter being a question of law.
In State v. Smart, 81 Mont. 145, 148, 149, 262 P. 158, 159, 160, the court, discussing R.C.M.1921, § 12126 (now R.C.M.1947, § 94-8209), stated:
'* * * errors in law alleged to have been committed during the trial may be by this court reviewed either on appeal from the judgment or from an order denying a motion for a new trial.' The court then cites State v. Brantingham, 66 Mont. 1, 8, 9, 212 P. 499, 501, which said:
'* * * the question of the sufficiency of the evidence to justify the verdict, where the evidence tends even remotely to prove the elements of the crime charged, can be reviewed only on appeal from an order refusing a new trial.' 24 C.J.S. Criminal Law § 1837, pp. 682-686.
The defendant contends in his third specification of error that there is no substantial evidence to support the verdict or judgment of conviction. But since this claim raises the question of sufficiency of the evidence rather than the question of total failure of proof and since the appeal was not taken within sixty days after the order denying the motion for a new trial, as required by statute, the motion of the State to strike the defendant's third specification of error is granted.
However, the remainder of the the appeal is properly before this court since it was taken within six months after the rendition of the judgment of conviction, as prescribed by R.C.M.1947, § 94-8105.
On the evening of December 31, 1959, the defendant and two other young men were in a public bar in Galen, Montana, in the company of three young women, one of whom was the prosecutrix. At that time the defendant was twenty-two years of age and the prosecutrix was sixteen years of age. Shorty after 1:30 A.M. on January 1, 1960, the defendant and the prosecutrix left the bar and began driving on a side road toward Anaconda. The defendant drove up a hill, encountered a dead end, and, while attempting to back the car down the hill, ran the left rear wheel off the road. The defendant instructed the prosecutrix to get into the back seat, and, after unsuccessfully trying to move the car, climbed into the back seat with the prosecutrix. The defendant then attemped to take liberties with the prosecutrix, but ceased his activities within a few minutes due to the struggling and pleading of the prosecutrix. The two walked back to Galen and waited until early morning when the defendant obtained assistance in getting the car back on the road. The defendant then drove the prosecutrix to her home in Anaconda. The parents of the prosecutrix were in a highly agitated state, and, at the insistence of the mother of the prosecutrix, the defendant went immediately to the police station, where he was taken into custody and charged with attempted rape.
On the afternoon of January 1, 1960, the county attorney took a statement from the defendant in the form of questions and answers. At the trial, over the objection of the defendant, the State offered in evidence the transcribed statement of the defendant. Thereafter, the court gave permission to the deputy county attorney to read the statement to the jury. It included the following question by the county attorney and answer by the defendant:
The defendant then made a motion for a mistrial, which was denied, and a motion to have the question and answer stricken, which was granted. The defendant claims that the court erred in denying his motion for a mistrial.
The defendant contends that the statement was evidence tending to show the commission of a crime other than the one charged, and therefore that it was inadmissible and prejudicial.
The general rule is found in 44 Am.Jur., Rape, § 79, p. 948, where it is said: To the same effect see 22 C.J.S.Criminal Law § 682, pp. 1084, 1087, and 167 A.L.R., Evidence--Other Sexual Offenses, pp. 588-591.
This rule was followed in State v. Sauter, 125 Mont. 109, 111, 232 P.2d 731, 732, wherein the court cites People v. Whalen, 70 Cal.App.2d 142, 146, 160 P.2d 560, 562, a statutory rape case, in which the California court said:
'The authorities are unanimous in holding that a defendant's right to a fair trial in his sort of case is violated by the receipt of evidence of the commission of acts similar to those charged, with a person or persons other than the prosecutrix. People v. Asavis, 1937, 22 Cal.App.2d 492, 71 P.2d 307, and cases cited. The People insist that even if the evidence was improperly admitted, it was not prejudicial, for the reason that it did not establish the commission of a criminal offense. There are two good reasons why this position cannot be sustained. A fair inference from the testimony of the daughter would be that defendant was guilty of acts of assault. But if this were not so the evidence was equally inadmissible. As stated in People v. Glass, 1910, 158 Cal. 650-655, 112 P. 281, 293, 'Not only is the prosecution thus forbidden to prove another crime, but the law does not sanction the introduction of evidence falling short of crime and designed merely to degrade and prejudice the defendant in the minds of the jury."
In Landon v. State, 77 Okl.Cr. 190, 193, 140 P.2d 242, 244, a statutory rape case, the court sai...
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