State v. Bailly , 29 S.D. 588 ( 1912 )

WHITING, J.

Defendant was convicted of the crime of rape, alleged to have been committed upon the person of a girl under the age of consent. From the judgment of conviction and the order denying .a new trial, he has appealed to. this court and specifies numerous errors, most of which relate to. the rulings of the court upon the admission of evidence. The rulings of the trial court upon the admission of evidence were extremely fair to defendant, and we find few assignments of error meriting consideration in this opinion.

[1] There was received in evidence the testimony of a Catholic priest ajs to* the contents of a parish record of his church, which record was in his charge as pastor of such church and by him produced in court. He testified that such record was a record of the baptisms of tire children of his parish. He was asked what else appeared on it. This wais objected to. as not the best evidence, objection overruled, and exception taken. He answered that it showed date of baptism, date of birth, parents of child baptised, and witnesses to the fact. He then, without objection, and without the introduction of the record in evidence, was allowed to testify that the record was in Latin, and to translate the contents of the same. It is clear that the witness’ statement to the effect that the record showed date of birth was absolutely harmless to defendant. A very different question would be presented under an objection raising the question as to the. competency of such a record to prove date of birth.

[2] Appellant contends that the evidence received was insufficient to warrant the jury in finding the fact ofusexual penetration, which finding the trial court rightfully charged was essential to justify a verdict of guilty. The complaining witness testified that defendant had “intercourse” • with -her, but did not go into detail in regard to the act of copulation ;and it is the contention of appellant that the jury had no1 right to find that there was sexual penetration. In support of such contention, appellant cites a large number of authorities, all of which we have examined. The only one of said authorities that in the remotest degree touches upon the question before us is the case of People v. Howard, 143 Cal. 316, 76 Pac. 1116. In that case, as in case at bar, the complaining witness testified that defendant had “intercourse” with her; and, while the court, in that case, clearly held that proof of “sexual intercourse” would be sufficient to establish penetration (the court saying, “The prosecution must have proven sexual intercourse, which includes and means sexual penetration"), and also held that the penetration might be inferred by the jury from other facts and circumstances proven, yet the; court held that, owing to the divers meaning's given the word “intercourse” in. accordance with its various uses, from the mere statement that defendant had “intercourse” with complaining witness at a certain time and place, the state did “not succeed in proving sexual intercourse.” We think that regardless of the various meanings given by lexicographers to the word “intercourse,” when, as in the case at bar, the prosecuting witness testified that, at the solicitation of defendant, she, with him, entered a building after dusk, that he took her upon his lap and kissed her, that he told her he wanted to get next to her, that she objected, stating she was unwell, and tha-t “we hadn't ought to be doing that all the time,” to which he replied, “Oh, that doesn’t make any difference,” that he put his coat on the floor and her on top of it, and that he had intercourse with her, the jury was fully justified in finding that the comradeship between these parties was not of a platonic nature; that their “intercourse” was not the mere exchange of mental thoughts and impulses, nor yet the spiritual communion of two souls that beat as one, but rather that such “intercourse” was physical in its nature, and one resulting from the sexual pagsions and impulses with which the bodies of these two persons had been imbued; in other words, that it was “sexual intercourse.” We furthermore find in the record the testimony of the complaining witness, giving an alleged statement of defendant, claimed to have been made immediately following this “intercourse,” which statement, if made — and we presume the jury found it was made— shows that the defendant knew that he had fully accomplished the carnal knowledge of the person of the complaining witness, and was fearful that it might result in pregnancy.

[3] Appellant complains of certain statements made by counsel for the state in his closing argument to the jury. While the statements made were wholly unwarranted by the evidence in the case, and were sucia as to -merit censure from this as well as the trial court, yet we do not believe -they could have influenced the jury in its verdict; and the trial court, which was in a much better position than is this court to judge of the merits of this matter, having refused- a new trial, this court would certainly not be justified in reversing such decision.

' [4] The only other assignment meriting- attention is one based upon alleged misconduct of the complaining- witness and her family in exhibiting the child of the complaining- witness before the members of the jury, in the corridors of the courthouse, during the recesses of the court. The affidavit of counsel for the defendant absolves the representatives of the state ’ from being parties to this alleged wrongful conduct. Considering- this matter in the light of the testimony received, and especially in the light of the theory of the defense and the testimony in support of such defense, w-e are unable to see how an inspection -of this child could in any wise prejudice the defendant. According- to the contention of the defense, the complaining witness was, at the time of the alleged rape, nothing more nor less than a common prostitute, wh-o had -surrendered her person to the embraces of numerous persons. If the jury believed the plaintiff’s testimony, the view of the child could not. add strength thereto; and certainly, in the light of the testimony offered by the defense, there could be no inference drawn as to the parentage -of the child. Even in -the light of the testimony of the complaining witness, the parentage of any child born to- her, if one -was so- born, would be extremely doubtful. The fact -of the child’s existence would, at the most, only prove that some person, at -some time, had sexual intercourse with the complaining witness. It further appears, from the affidavit of counsel for the defense, that such counsel saw these exhibitions of which lie is now complaining. Having seen the same, if it seemed to him that the rights of his client were being-prejudiced thereby, he should have called the matter to the attention of the trial court, so that such court could have protected his client by proper orders.

[5] With the exception of the improper statements- made by the state’s counsel in his argument to the jury, the trial was exceedingly fair to the defendant; and, while different minds might readily -have reached different conclusions in view of the evidence received, yet the jury, under proper instructions, having resolved the facts against defendant, it is not the province of this court t-o reverse the verdict.

The appellant has filed a reply brief herein, and we regret ■that we feel compelled to call attention to the fact that such reply brief is replete with accusations and insinuations of willful, unprofessional conduct and improper motives on the part of counsel representing the state, which accusations and insinuations are not justified by the record herein. We are certain that, upon reflection, counsel for the defense will agree with us that all personalities between counsel, or any charges impugning the motives of counsel, have no proper place in a brief filed in this court. We would suggest that, if the matters properly in the the record are such as to show willful, unprofessional conduct or improper motives on the part of any attorney connected with the case, it is unnecessary to call our attention to the fact in order for us to discover same; and it is. entirely improper to call our attention to it, unless some claim of error is based thereon. As illustrative of the- class of matter to which we object, we quote the following: “We do not wish to state why we believe the prosecuting attorneys in this case are so determined to send the defendant to- state’s prison, but we do know, and this court knows, that the regularly elected and acting state’s attorney of Roberts county has had no part in this prosecution, and in -his s-tead appear, as special prosecutors, two gentlemen having no connection with his office. It may be possible that their zeal in this prosecution may -be somewhat affected by the interests which procured their ’appearance in the case.”

[6] The transcript of proceedings upon trial fails to show but what counsel for state were the state’s attorney and his assistant, though, other parts of the record would indicate that one or both were special attorneys in the case. This court, in the absence of any showing in the court below, will presume that there was good and sufficient reasons why the state’s attorney could not propertly try this case, and will, furthermore, presume that the attorneys acting in his place were properly employed on behalf of the state, especially when the record shows no objection whatsoever to -their appearing herein.

The judgment and order appealed from are affirmed.

M-cCOY and SMITH, JJ., took no part in this decision.