State v. Yeager

• Decision Date: 03 September 1918
• Docket Number: 4338
• Citation: 168 N.W. 749,41 S.D. 51
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Respondent, v. HORACE YEAGER, Defendant and Appellant.
• Court: South Dakota Supreme Court

41 S.D. 51

168 N.W. 749

STATE OF SOUTH DAKOTA, Plaintiff and Respondent,

v.

HORACE YEAGER, Defendant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. Alva E. Taylor, Judge #4338--Reversed Null & Royhl Attorneys for Appellant. Clarence C. Caldwell, Attorney General A. A. Chamberlain, State's Attorney Attorneys for Respondent. Opinion filed September 3, 1918

WHITING, P. J.

Defendant was convicted of rape, and appeals from the judgment and an order refusing a new trial.

The information filed in circuit court charged that the crime was committed on February 20, 1914. In his opening statement to the jury the state's attorney stated that "the state expects to show that along in February, 1914, ... defendant had intercourse with her [the complaining witness] at—in a coal shed at the schoolhouse; ..." and evidence supporting such statement was introduced upon the trial. The state, over objection, was permitted to introduce evidence tending to prove a separate and distinct act of sexual intercourse, testified, by complaining witness, as occurring two months after the act occurring in the coal shed. It was the claim of the state that it had the right to prove these two separate, distinct acts, either one as corroborative of the other, and, furthermore, that it could not be required to elect as to which act it would rely upon for conviction. The defense took the position that the state was bound to rely on the coalhouse act as the basis for conviction, and that proof of no act occurring subsequent to the act relied upon could be received as corroborative evidence. The trial court agreed with the state, and, by its instructions, authorized the jury to convict if they were able to reach a unanimous verdict as to either act. The above facts present the most important question before us.

The state urges that, inasmuch as time is not an element of the crime of rape, the time alleged was immaterial, and it was competent to prove any act occurring within the statutory period of limitation. The state overlooked a very important fact—while time is immaterial the transaction charged is material. A defendant cannot be tried for two crimes under a charge of one; neither, under the claim that time is immaterial, can the state switch from one act and rest its case upon proof of another act. If there has been an error in the information as to the true time when the act charged was committed, the state is not barred from proving such act because of the fact that such proof establishes another date unless the date proven shows the prosecution barred by the statute of limitations. It is absolutely clear from the information, the opening statement of the state's attorney, and the evidence received that there was no error of date in the information, and that the act against which defendant was called to defend was the act claimed to have been committed at the coal shed. For all the record shows, the jury may not have found defendant guilty of that act, but may have based their verdict on the other act. The reasoning in People v. Jenness, 5 Mich. 305, is peculiarly in point. In that case evidence of previous acts had been admitted, "not as substantive offenses, but in explanation and corroboration of the evidence of the act charged in the information." The court says:

"But after the evidence had been admitted for this purpose, the prosecuting attorney changed his ground, and claimed that the jury might select any one of the acts on which evidence had been given as the ground of their verdict. ... The prosecution claimed that any act of intercourse proved was the offense charged;. The court gives them no information on the subject. It was a question of law, important for the government of the jury. He leaves it to them to ascertain. Will the jury be likely to find it out if the court cannot? But the third paragraph of the charge clearly adopts the theory of the prosecuting attorney, and holds that any one of the several acts of sexual intercourse proved, or attempted to be proved, may be selected by the jury as the 'offense charged,' and that they may find the defendant guilty of the one thus selected; as he tells them, 'they may find him guilty if, from the evidence, they believe that the act was not committed at the Howard House, but was committed at some other place in the city of Detroit, within the period of six years prior to the time of filing this information. Now, there was no dispute whether that particular act of intercourse stated to have occurred at the Howard House, occurred there or at some other place in the city, nor whether it occurred at a period, materially different from that stated by the witness; and neither the jury nor this court could possibly derive any...