State v. Werner

• Decision Date: 01 June 1907
• Citation: 16 N.D. 83,112 N.W. 60
• Parties: STATE v. WERNER.
• Court: North Dakota Supreme Court

16 N.D. 83

112 N.W. 60

STATE

v.WERNER.

Supreme Court of North Dakota.

June 1, 1907.

Syllabus by the Court.

Following the rule announced in State v. Ekanger, 80 N. W. 482, 8 N. D. 559, it is held that a juror, who states on his voir dire that he has formed and entertains an opinion as to the guilt or innocence of the accused which it will require some evidence to remove, is not disqualified from serving, where it appears that such opinion is based wholly upon newspaper accounts of the transaction and common street gossip, provided it satisfactorily appears to the court that the juror can, and will if accepted, notwithstanding such opinion, fairly and impartially try the case on the testimony adduced and the law as given by the court.

The decision of the trial court upon an issue raised by a challenge to a juror for actual bias is entitled to great respect by this court, and will be disturbed only when it clearly appears that there was an abuse of discretion.

Whether a child eight years of age possesses sufficient knowledge to comprehend the nature of an oath and is otherwise competent as a witness is for the trial judge to determine within a sound judicial discretion, and in the absence of a clear abuse of such discretion this court will not reverse his decision.

Defendant was prosecuted and convicted of the crime of rape in the first degree, and he challenges the sufficiency of the evidence to sustain the verdict. The prosecutrix, at the date of the commission of the offense, was a child only eight years of age, and it is contended that certain medical testimony conclusively demonstrates that the condition of the child, when examined afterwards, was such that the crime could not have been consummated. Held, that there was sufficient evidence from which the jury was justified in finding the defendant guilty as charged.

Three days after the commission of the alleged crime the prosecutrix made certain statements to her mother concerning the facts of the case, and the mother was called as a witness and permitted to detail the particulars of such statement over the objection of defendant's counsel. Held, that such testimony was competent, in view of the prior attempt on cross-examination of the girl to discredit and impeach her testimony theretofore given to the effect that she had made such statements to her mother, and also in view of the further fact that the defense had brought out on cross-examination a portion of such particulars.

The various rules adopted by the courts in other states with reference to the admissibility of proof of such statements, together with the adjudicated cases in support thereof, are referred to in the opinion.

The prosecution was permitted, over defendant's objection, to prove by the witness Dr. Todd a certain conversation had between the witness, the defendant, and the state's attorney, for the purpose of showing certain admissions of the defendant that he was afflicted with a loathsome disease which the state claimed was communicated by him to this girl. The gist of this conversation was as follows: Mr. Thorp, the state's attorney, asked defendant certain questions relative to his having a venereal disease, and among other questions he asked him what was the matter with him, to which defendant replied: “There is Dr. Todd who treated me. He can tell you.” Thereupon Dr. Todd said in effect that defendant had a loathsome disease, naming it. The defense contends that it was improper to permit the doctor to narrate this conversation, for two reasons: First, because it violated section 7304, Rev. Codes 1905, which provides that a physician or surgeon cannot be examined as a witness without the consent of the patient as to any information acquired in attending the patient; and, second, because such conversation could not be construed as either an express or implied admission on defendant's part of the fact sought to be proved. Such objection held untenable.

The state called Dr. Vidal in rebuttal, and proved by him, over defendant's objection that the same was not proper rebuttal evidence, certain facts relative to the physical condition of the prosecutrix, and also elicited from him as a medical expert an opinion conflicting with opinions given by defendant's witnesses based upon the condition of the child at the date of the trial. Held not error.

Appeal from District Court, Stutsman County; Chas. A. Pollock, Judge.

Albert F. Werner was convicted of rape in the first degree, and appeals. Affirmed.

J. F. Callahan and Engerud, Holt & Frame, for appellant. T. F. McCue, Atty. Gen., and Geo. W. Thorp, State's Atty. (Edward H. Wright, of counsel), for respondent.

FISK, J.

Defendant was convicted in the district court of Stutsman county on November 1, 1905, of the crime of rape in the first degree, and from a judgment sentencing him to confinement in the penitentiary for the term of 10 years he has appealed to this court, alleging numerous errors in the rulings of the trial court, and also alleging insufficiency of the evidence to sustain the verdict.

Appellant is about 26 years of age, and the female upon whom it is alleged that he perpetrated this crime is a mere child of about the age of 8 years. Defendant for some time prior to the date of the commission of the alleged offense was on very intimate and friendly terms with the parents of the child, and a cousin of the mother, and for about a year prior thereto had resided in the family of the child's parents, during which time Lena, the prosecutrix, often slept in the same bed with him, and at other times she visited him at his own home nearby. The child's parents are German, and have resided in this country but a few years, and, while Lena can understand and speak English to some extent, she has had practically no school advantages, and it is insisted by appellant's counsel that she was unable to comprehend the nature of an oath and not of sufficient intelligence to be a competent witness. The other facts necessary to a complete understanding of the questions involved will be referred to later in this opinion. With this brief statement of the nature of the case, we will proceed to consider the alleged errors assigned by appellant's counsel.

The first three assignments call in question the correctness of the rulings of the trial court in denying defendant's challenges for actual bias of the jurors Corwin, Orlady, and Thompson. It is contended, and we think such contention well founded, that, if these rulings were erroneous, they were manifestly prejudicial, as defendant was required to exhaust his peremptory challenges in order to exclude these jurors from the case, and hence was deprived of exercising challenges upon other jurors claimed to have been undesirable. These jurors on their voir dire stated in substance that they had read the newspapers purporting to give the facts involved in the case, and had heard the case discussed by others more or less, and had heard opinions expressed as to the guilt or innocence of the defendant, and that from what they had heard and read they had formed opinions which it would take evidence to change. On being examined further it developed that the opinions which they entertained were based solely upon newspaper articles and current gossip, and that they had no clear and distinct recollection of what they had read or heard, did not know who the witnesses were, and that, if accepted and sworn as jurors, they could and would disregard the opinions or impressions they had formed, and try the case according to the evidence and the law, and that they understood it would be their duty so to do. From a careful examination of their testimony we are unable to say that the trial judge, in whom is vested by law a very wide discretion in such cases, clearly abused such discretion. As stated in State v. Church, 6 S. D. 89, 60 N. W. 143, which language was expressly indorsed by this court in State v. Ekanger, 8 N. D. 559, 80 N. W. 482, the decision of the trial court in passing upon the qualifications of jurors “will be treated with great respect by this court, and only reversed when, in its opinion, such decision is clearly wrong.” The contentions of counsel for appellant with reference to the matters embraced in these assignments of error are, we think, fully and completely answered adversely to appellant in the opinion of Chief Justice Bartholomew in State v. Ekanger, supra, and the rule enunciated in that opinion meets with our unqualified approval, and we believe is sustained by the weight of modern authority. The question is ably treated, and the authorities collated, in 24 Cyc. pp. 286 to 298, inclusive. This disposes of appellant's first three assignments of error.

Appellant's fourth assignment of error, relating to the instructions to the jury, was expressly waived at the oral argument, and hence will not be noticed.

The next assignment relates to the competency as a witness of Lena Kuetbach. As before stated, she was only about eight years of age, and had been afforded but little, if any, school advantages. She was examined at great length, both by counsel and the court, with reference to her general knowledge, and such examination disclosed a somewhat less degree of intelligence than the ordinary child of her age; but, when her lack of advantages are considered, we are unable to say that she is not at least up to the average child of her age intellectually. She made intelligent answers to practically all of the many questions asked her by court and counsel, and while she disclosed gross ignorance as to some things which a child of her age, but with better advantages, ordinarily is informed regarding, it appears that she quite fully understood and comprehended the import of the questions asked her, and that she as a witness was bound to tell the truth in regard to the facts of the case, and that she would be subjected to punishment for not so doing. Counsel for appellant contend that...