State v. Werner
| Decision Date | 01 June 1907 |
| Citation | 112 N.W. 60,16 N.D. 83 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman County. Pollock, J.
Albert F. Werner was convicted of rape in the first degree, and appeals.
Affirmed.
J. F Callahan and Engerud, Holt & Frame, for appellant.
If the juror discloses that he cannot try the case impartially uninfluenced by his previous opinion, he should be rejected. 1 Thompson on Trials, section 83; People v Wilwarth, 156 N.Y. 566; State v. Riley, 78 P 1001; People v. Suesser, 64 P. 1095.
A child witness with no realization of the obligations of an oath, and of low degree of intelligence, mental development and training even for a child of tender age, is incompetent. Morey v. Hoyt, 19 L. R. A. 611.
In prosecution for rape, the mere fact that the prosecutrix made complaint is all that is necessary or admissible to prove. 3 Greenleaf on Ev., section 213; People v. Mayes, 6 P. 691; People v. Stewart, 32 P. 8; Ellis v. State, 6 So. 768; Stephen v. State, 11 Ga. 225; Thompson v. State, 38 Ind. 39; State v. Shettlesworth, 18 Minn. 208 (Gil. 191); Baccio v. People, 41 N.Y. 265; Kirby v. Territory, 28 P. 1134; State v. Ivius, 36 N.J.L. 233; Reddick v. State, 34 S.W. 274; State v. Carroll, 32 A. 235; Lee v. State, 74 Wis. 45; Parker v. State, 10 A. 219.
In rebuttal, only rebuting testimony should be received, unless for good reasons in furtherance of justice, or to cure an evident oversight, the court permits evidence as in the original case. Rev. Codes, 1905, section 9984; People v. Quick, 25 N.W. 302; Reddick v. State, 16 So. 490; State v. Hunsaker, 19 P. 605; Williams v. Com. 14 S.W. 595.
T. F. McCue, Attorney General; Edward H. Wright, of counsel; Geo. W. Thorp, States Attorney.
If the court is satisfied that the juror can and will try the case impartially, notwithstanding that he may have heard statements, etc., he should be sworn. Rev. Codes, 1905, section 9975; Jones v. People, 5 Col. 48; Com. v. Webster, 5 Cush. 295; 1 Thompson on Trials, 79, 80, 81, 82 and 83; People v. Reynolds, 16 Cal. 129; People v. Symonds, 22 Cal. 349; State v. Dorsey, 5 So. 26; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; State v. Field, 56 N.W. 276; Gillhooley v. State, 58 Ind. 182; State v. Rose, 32 Mo. 346; State v. Wilson, 85 Miss. 135; State v. Hoyt, 48 Conn. 518; State v. Reed, 89 Mo. 168, 1 S.W. 225; State v. Ekanger, 8 N.D. 559, 80 N.W. 482.
The discretion of the court in admitting the testimony of witness 8 years old was carefully, judicially and fairly exercised. State v. Reddington, 64 N.W. 170; State v. Michael, 19 L. R. A. 605; Wigmore on Evidence, Vol. 1, sections 505, 506 and 509, 1820, 1821.
Prisoner's statement by reference is the same as if made by himself. Wigmore on Evidence, Vol. 2, section 1069 and 1070; Greenleaf on Evidence, Vol. 1, section 182; Stevens on Evidence, article 19; Jones on Evidence, section 265; Chapman v. Twitchell, 37 Me. 59, 58 Am. Dec. 773; Duval v. Covenhoven, 4 Wen. (N.Y.) 564.
Party may waive the right to have privileged statements excluded. 4 Wigmore on Evidence, section 2388; 3 Jones on Evidence, section 779; Gillette on Indirect and Collateral Evidence, section 111; Wharton on Criminal Evidence, section 663.
Prosecutrix's statements made after the offense may be proven in detail and identity of person proven. State v. Cook, 61 N.W. 185; State v. Watson, 46 N.W. 868; State v. Hutchinson, 64 N.W. 611; State v. Peterson, 82 N.W. 329; 4 Blk. Com., section 213; Brown v. People, 36 Mich. 203; 2 Crim. Reports, 586; People v. Goulette, 45 N.W. 1124; McCombs v. State, 8 Ohio 643.
Particularly where the prosecutrix is of tender years. Territory v. Keyes, 5 Dak. 244, 38 N.W. 440; Territory v. Godfrey, 6 Dak. 481, 50 N.W. 481; People v. Glover, 38 N.W. 874; People v. Brown, 19 N.W. 172; Hanan v. State, 36 N.W. 1; Proper v. State, 55 N.W. 1035; People v. Gage, 28 N.W. 835; State v. Andrews, 105 N.W. 215; State v. Peres, 71 P. 162.
Delay in making the complaint only affects the credibility of the witness. State v. Neel, 60 P. 510; State v. Wolf, 92 N.W. 673; State v. Halford, 54 P. 819; Trimble v. Territory, 71 P. 932; 19 Am. & Eng. Enc. Law (1st Ed.), page 961; 2 Wigmore on Evidence, section 1135.
Details of complaint are admissible when it is sought to impeach prosecutrix, or a portion of details is brought out on cross-examination. 1 Elliott on Evidence, section 566; 3 Greenleaf on Evidence, section 213; 4 Elliott on Evidence, section 3099; 4 Elliott on Evidence, section 3102; Wood v. State, 64 N.W. 355; State v. Neel, 60 P. 510; Territory v. Maldonado, 58 P. 350; State v. DeWolfe, 8 Conn. 93; 19 Am. & Eng. Enc. Law (1st Ed.), page 960; Griffin v. State, 76 Ala. 29.
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 eight 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 the 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...
To continue reading
Request your trial