State v. Lee , 45 S.D. 375 ( 1922 )

GATES, P. J.

Defendant, aged 22, was convicted of the crime of rape upon a girl who was nearing the age of 14. Several months after the trial prosecutrix wrote a letter to the trial judge, and later made an affidavit to the effect that her testimony, given at the trial, was false and that she had never had sexual intercourse with defendant. These were before the court on the motion for new trial, which was denied. The defendant appeals from the judgment and order denying new trial and relies upon the insufficiency of the evidence to justify the verdict and upon the retraction made by prosecutrix.

Upon the trial the prosecutrix testified that the crime was accomplished at the pool hall of appellant’s father in Huron, on the night of Thanksgiving day, 1919. There was enough evidence, if believed by the jury, to sustain the verdict.

Eor an alibi for defendant, one Alma Shaw, claiming-to live in Council Bluffs, Iowa, testified that she arrived in Huron on the night of the alleged offense and left the next morning for Minneapolis, and that it was she who was with appellant in the pool room that night. Her testimony in regard to her travel to and' from Huron was so discredited at the trial as to warrant the jury upon the trial, and the trial court upon the motion for new, trial, in disregarding it in toto. That some female was with defendant at the pool hall is certain from the evidence. That such female must either have been the prosecutrix or the said Alma Shaw is also certain from the evidence. With the evidence of Alma Shaw disregarded, we cannot say that the trial court abused its discretion in denying a new trial, if it believed that prosecutrix told the truth at the trial and lied upon the motion for new trial. The trial court had such superior advantage over this court in determining the credibility of the witnesses, and the outcome of the motion for new trial depended upon such credibility, that we do not feel justified in holding that it committed error in not granting a new trial:

The judgment and order appealed from are affirmed.