Territory v. Godfrey
| Decision Date | 28 February 1888 |
| Citation | 50 N.W. 481,6 Dak. 46 |
| Parties | Territory v. Godfrey. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Error to district court, Beadle county; James Spencer, Judge.
James Godfrey was indicted and convicted for an assault with intent to rape, and brings error. Affirmed.
The indictment charged that James Godfrey, at, etc., in and upon the person of Mary Lauterbach, a female child under the age of seven years, did make an assault, and her, the said Mary Lauterbach, did ill-treat, with an intention to ravish and carnally know her, the said Mary Lauterbach, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Dakota. Defendant claimed that this did not charge a public offense; that to charge a felony the word “feloniously” was necessary. Witnesses were examined for the state, who did not appear before the grand jury, and whose names were not indorsed on the indictment. The mother of the child testified that, immediately after the time at which the assault was laid, the child complained of the assault, and of a pain in her abdomen. Defendant claimed that there was error in allowing her to testify to more than the naked fact that complaint was made. Pen. Code Dak. §§ 325, 326, provide imprisonment in the territorial court as punishment for rape. Section 292 provides that every person guilty of assault with intent to commit any felony, other than those referred to in section 291, (which does not mention rape,) may be punished by imprisonment in the territorial prison, or in the county jail, or by fine. Code Crim. Proc. Dak. § 4, defines a “felony” as a crime which may be punished with death or by imprisonment in the territorial prison. Section 256 provides that an indictment must be set aside when the names of the witnesses examined before the grand jury are not indorsed on the indictment.
Mouser & Vollrath and E. A. Morse, for plaintiff in error. Chas. F. Templeton, Atty. Gen., for the Territory.
1. The indictment was sufficient in form.
2. The court did not err in permitting witnesses to testify whose names were not on the indictment.
3. The court did not err in permitting the mother to testify to the fact of immediate complaint after the assault. The judgment is affirmed. All concur.
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