State v. Twyford

• Decision Date: 04 May 1971
• Docket Number: No. 10845,10845
• Citation: 85 S.D. 522,186 N.W.2d 545
• Parties: The STATE of South Dakota, Plaintiff and Respondent, v. Terry Lynn TWYFORD, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 545

186 N.W.2d 545

85 S.D. 522

The STATE of South Dakota, Plaintiff and Respondent, v. Terry Lynn TWYFORD, Defendant and Appellant.

No. 10845.

Supreme Court of South Dakota.

May 4, 1971.

David V. Vrooman, Sioux Falls, for defendant and appellant.

Gordon Mydland, Atty. Gen., F. M. Niemoller, Asst. Atty. Gen. Pierre, Larry Hosmer, State's Atty., Yankton, for plaintiff and respondent.

WINANS, Judge.

The defendant, charged with the crime of rape in the second degree, was upon jury trial convicted of attempted rape in the second degree. He was sentenced to five years in the state penitentiary and appeals from the judgment.

The victim was twelve years of age at the time of the alleged rape and the defendant was nineteen years of age.

The appellant presents and argues two assignments of error.

1. That the court erred in not granting defendant's motion for a directed verdict of not guilty and acquittal made at the close of the state's case upon the grounds that the state had failed to establish a prima facie case, and more specifically, because of the failure of the state to present any evidence whatsoever to establish that the victim, Joni Aline Turner, was not at the time of the incident the wife of the defendant.

Rape is defined in South Dakota as follows, SDCL 22--22--1:

'Rape in an act of sexual intercourse accomplished with a female, not the wife of the perpetrator under either of the following circumstances:

(1) Where the female is under the age of eighteen years'.

The above defined rape is generally referred to as statutory rape. Rape is made second degree rape unless committed upon a female under the age of ten years or incapable, through lunancy or any other unsoundness of mind, of giving legal consent, or accomplished by means of force overcoming her resistance, in which case it would be rape in the first degree. SDCL 22--22--4.

The contention made under this assignment of error is the state did not prove upon the trial that prosecutrix and defendant were not husband and wife. The information in the case properly alleged they were not. It is claimed the court completely overlooked this one element of the statutory definition of rape in its Instruction No. 17. It is true that such instruction does not mention the necessity of proof of this one element, but it is mentioned either directly or indirectly in three other instructions given to the jury, namely, Nos. 1, 3 and 5. Instructions must be considered as a whole. State v. Sturgis, 54 S.D. 245, 222 N.W. 681. Also West's Dakota Digest, Criminal Law, k 822 et seq. Viewed in light of instructions as a whole, the defendant was not prejudiced. State v. Ballard, 72 S.D. 293, 33 N.W.2d 339.

Our court has held in State v. Fulks, 83 S.D. 433, 160 N.W.2d 418, 'Carnal knowledge of a female under the age of eighteen years, not the wife of the perpetrator, with or without her consent constitutes the crime.'

The North Dakota Supreme Court has held that rape can only be "accomplished with a female not the wife of the perpetrator.' It is a part of the statutory definition, and must be alleged in the information and proven at the trial.' It must be proven 'beyond a reasonable doubt'. State v. Johnson, 58 N.D. 832, 227 N.W. 560. The Johnson case, supra, quotes the case of Munger v. State, 57 Tex.Cr.R. 384, 122 S.W. 874, 876 as follows: 'A reversal is asked because the evidence fails to show that the alleged injured female was not the wife of the defendant. Singular to say, but the statement of facts does not show positively, or, rather, by positive statement, that she was not the wife of appellant. However, the circumstances show that she was not his wife.'

In the Munger case it was held that the indirect proof was sufficient, although it was not offered for the purpose of proving that there was no marital relationship. The North Dakota case refers to a number of cases which in effect hold that the fact of nonmarriage may be established by indirect testimony. The holding in State v. Seeb, 1949, 76 N.D. 473, 37 N.W.2d 341, is 'that the defendant and prosecuting witness were not husband and wife may be proven by indirect as well as direct evidence. As said in the case of State v. Johnson (citations) 'like any other fact, it may be proved by facts and circumstances from which the conclusion (of nonmarriage) may be drawn."

The Washington Supreme Court in the case of State v. May, 1910, 59 Wash. 414, 109 P. 1026, holds, 'It was apparently assumed by counsel throughout the trial of the case that the marriage relation did not exist, and no direct testimony was offered upon that question. But it was shown that the child was under the age of 14 years, and that she was living at home with her father and mother, and bearing her maiden name. In fact, she was a mere schoolgirl, and there is nothing in the record to indicate that she was married. All the circumstances indicate beyond question that she was unmarried, and certainly was not the wife of Arndt. While it is the rule that want of the marriage relation is an essential ingredient of the crime, and must be alleged and proved, still it is not absolutely necessary to prove that fact by direct and positive testimony; but, like any other fact, it may be proved by facts and circumstances from which the conclusion may be drawn.'

The age of consent of marriage of an unmarried female, not otherwise disqualified, in the State of South Dakota is sixteen years or upwards. SDCL 25--1--9. Under-age marriage is permitted in case of pregnancy. SDCL 25--1--12. In this case the age of the girl at the time of the alleged rape was twelve years. It was also shown that she was a mere schoolgirl in the sixth grade; that she lived at home; that her surname was different from that of the defendant. Other facts and circumstances were shown, and from all of these it is reasonable to assume that the jury could find as a fact and beyond a reasonable doubt that prosecutrix was not married and certainly was not the wife of the defendant at the time the rape was committed, and we think that the rule in South Dakota should be that nonmarriage of the prosecutrix to the perpetrator of the sexual act is an essential ingredient of the crime which may be proved by facts and circumstances from which the conclusion may be drawn the same as the rule set forth in many other states and which in brief have been alluded to above.

Beyond all 'reasonable doubt' is not the same us 'mere possibility of doubt'. It is not an imaginary doubt nor a doubt of absolute certainty of guilt of a defendant. See Pattern Jury Instructions for South Dakota, and the source material referred to.

The defendant's second assignment of error is:

2. That the court erred in allowing testimony by the mother of the victim relative to a conversation had with the victim some 67 to 82 days after the alleged rape.

The information in this case charged the offense a having been committed on or about the last fifteen days of October 1968. The mother testified that in January of 1969 she once again became aware that her daughter was seeing the defendant and that after she knew her daughter had resumed this relationship she had a conversation with her on January 6, 1969. The defendant was not present. The mother was asked, 'During the course of this conversation, without going into the actual conversation, did she (the victim) make any statement about having had on act of sexual intercourse?' This was objected to as hearsay. There was then made an offer of proof by the state out of the presence of the jury. The court's attention was called to two South Dakota cases, State v. Thrope, infra, and State v Schultz, infra, whereupon the court informed counsel that he would allow testimony of the fact of complaint, but not testimony or evidence concerning the actual acts or conduct of the two parties. Upon resumption the question was asked, 'What was that conversation about?' and over objection the mother was allowed to answer, 'About why she went about and disobeyed any orders and kept on seeing Terry'. The mother was also allowed over objection to testify that her daughter informed her she had an act of sexual intercourse with Terry.

Our court rather early, in the case of State v. Schultz, 1918, 41 S.D. 184, 169 N.W. 547, stated the rule of complaint and the reason for the rule as follows: '* * * what of proof of any complaint by the complaining witness tends to weaken her testimony. Thus has sprung up the rule of law which permits the testimony of third parties tending to prove the fact that complaint was made. This rule, under all authorities, allows no further proof than that complaint was made, with possibly proof of what was said as to the name of the guilty party. * * *.'

In the case of State v. Thorpe, 83 S.D. 499, 162 N.W.2d 216, the court held that complaint by the victim of third parties is admissible, but the details of her story are not, quoting State v. Schultz, supra.

We do not find that the evidence related to the details of the offense. What it did give was the fact of complaint and the name of complainant and the name of the alleged perpetrator.

However, error is predicated upon delay in making the complaint, it having been made on January 6th and the crime having bee committed at some point of time in the last fifteen days of the preceding October, making a delay in the neighborhood of some 67 to 82 days after the alleged incident.

We have held in State v. Fritz, 44 S.D. 517, 184 N.W. 235, 'The mere lapse of time occurring after the injury and the time of the complaint is not the test of the admissibility of the evidence. The rule requires that the complaint should be made within a reasonable time. The surrounding circumstances should be taken into consideration in determining what would be a reasonable time in any particular case.'

In an Iowa case, State v. Petersen, 110 Iowa 647, 82 N.W. 329, it was held complaints that the defendant had assaulted...