State v. Husman

RUDOLPH, J. The defendant, Fred Husman, was convicted of rape in the first degree and has appealed to this court. The sufficiency of the evidence to sustain the conviction is not questioned by anyone except the author of the dissenting opinion. Appellant states in his brief, “That there is evidence sufficient to justify the verdict of the jury, if believed, is conceded.” Appellant has set forth forty-seven different assignments of error, many of which relate to objections to testimony. Only those assignments of error of sufficient importance to warrant discussion will be referred to in this opinion. *532 The first assignment of error, and the one upon which appellant apparently principally relies, relates to the refusal of the trial court to grant appellant’s motion for a change of venue from Miner County. This motion was supported only 'by affidavits of appellant and his counsel. Neither appellant nor his counsel were residents of Miner County. There were no supporting affidavits by the residents of the county. The affidavit of appellant sets out in substance that appellant is a resident of Lake County; that the complaining witness and her parents had lived in Miner County, the county .in which the case was tried, for a number of years, and were well and favorably known in the county; that at the preliminary hearing which was held in Miner County, a large crowd assembled and threats (without stating what these threats were) were uttered against the appellant; that “he believes that the sentiment of the citizens of Miner County is very much against him and that he cannot have a fair and impartial trial in said county; that the commission of the offense with which the defendant is charged and purported facts connected with .it have been widely and extensively published and circulated by various and divers newspapers in the southeastern portion of the State of South Dakota.” The affidavit of counsel for the appellant was to the same tone and effect as to that of the appellant with the exception that this affiant stated that at the preliminary hearing, the state’s attorney asked that the amount of appellant’s bail be fixed at such a large amount that it would be impossible for appellant to secure such bail, and thereby keep appellant in jail and prevent any mob violence. A clipping from the Daily Argus Leader was submitted with this affidavit, containing a purported account of the alleged crime, which, it is alleged, was prejudicial to the defendant and appellant. It is alleged that the Daily Argus Leader is read widely and extensively in Miner County. This motion for change of place of trial was resisted on behalf of the state. The state’s attorney submitted an affidavit setting forth that the girl upon whom the alleged attack was made had moved from Miner County and was then living in the state of California; that she and her mother had been brought from California at the expense of Miner County to attend the trial, which would be delayed if a change of venue was granted; that since the girl and her family left Miner County, there had been no *533 particular discussion of the case, and that there was no feeling of prejudice, against the defendant existing in Miner County; that there had been no general discussion of the case in Miner 'County for a period of several months. This affidavit further denied that the Argus Leader was widely read in Miner County. In addition to the affidavits of the state’s attorney a large number of residents of Miner County from different townships throughout the county submitted affidavits. The general purport of these affidavits was that the case had had no general discussion and that there existed no feeling of prejudice or bias against the defendant. It also^ appears that immediately following the preliminary hearing the appellant secured bail and was released from jail, and was not disturbed in anyway upon his release. W'e think it clear that there was no abuse of discretion by the trial court in refusing to change the place of trial. The showing made by the appellant consisted to a large extent of the unsupported assertions of himself and counsel. These assertions were largely conclusions of affiants which had no support in any facts set forth in the affidavits, and as such could form no basis upon which to change the place of trial. Territory v. Egan, 3 Dak. 119, 13 N. W. 568. Judge Polley has accepted these unsupported assertions and conclusions of affiant and 'his counsel as statements of absolute fact, and entirely ignored the many affidavits submitted by disinterested citizens throughout the county, all of which were before the trial court. No complaint is made that a fair jury was not obtained nor does it appear that appellant exhausted his peremptory challenges or had any difficulty in securing a jury satisfactory to him. There is nothing in this record to show that the defendant did not have a fair and impartial trial because of any feeling of prejudice in the minds of the inhabitants of the county. In the case of State v. Meservey, 53 S. D. 60, 220 N. W. 139, 141, the trial court refused to change the place of trial, and this court sustained that action notwithstanding a much stronger showing than that made in this case. It was said in that case that “in allowing or refusing a change of venue the court must be governed by a sound judicial discretion.” Unless there is an abuse of such discretion, this court will not interfere. No abuse of discretion has been shown. *534 The appellant next complains of certain alleged misconduct of the state’s attorney in presenting the -case to -the jury. With one exception, there was no objection made by appellant at the time the alleged improper remarks -were made, nor was the court requested to- caution the jury against the force of such remarks, and no exception thereto appears to have been taken. This court said in the case of State v. Christensen, 46 S. D. 61, 190 N. W. 777, 779: “We think it was the duty of the defendant, if he desired to save this exception for the appellate court, to challenge by á proper objection the statement made by the state’s attorney and obtain a ruling upon the objection thereto, and that the defendant should. then request the trial court to give a proper instruction thereon; and, failing to do- so, he cannot now be heard to complain. State v. Knudson, 21 N. D. 562, 132 N. W. 149, and authorities cited therein.” This court adhered to the same rule in the case of Behseleck v. Andrus, et al., 60 S. D. 204, 244 N. W. 268, 270, 88 A. L. R. 596, wherein it said, “For the purposes of review upon appeal, it is too late to take exceptions to- argument of counsel to the jury after the jury has retired,” and noted with approval the following from the case of Crumpton v. United States, 138 U. S. 361, 11 S. Ct. 355, 356, 34 L. Ed. 958: “There is no doubt that, in the excitement of an argument counsel do sometimes make statements which are not fully justified by the evidence. This is not such an error, however, as will necessarily vitiate the verdict or require a new trial. It is the duty of the defendant’s counsel at once to call the attention of the court to the objectionable remarks, and request his interposition, and, in case of refusal, to note an exception.” The one objection made by appellant to the remarks of counsel occurred during the argument of the assistant attorney general to the jury, when this counsel was arguing that the sheriff went to a certain designated spot to locate a rock which was testified about in the evidence. -Counsel for defendant objected to this argument on the ground that the uncontra-dicted evidence disclosed that the -witness did not go to the particular spot to which he had -been directed. The court advised the jury that regardless of counsel’s argument,, it was for the jury to determine whether the witness went to the designated place or not, and instructed counsel on both sides to *535 keep to -the record in their argument to the jury. Whether the sheriff went to the particular spot to which he was directed was for the jury to determine, and the jury was so instructed toy the court. Counsel on the one hand claimed that he did, and counsel on the other claimed that he did not. The jury, however, heard the evidence and were, undoubtedly, qualified to decide this issue. The appellant next complains of the introduction into evidence of certain small pieces of metal which the sheriff testified were scraped from the surface of a certain rock. The introduction of this evidence came about in substantially the following manner. The prosecuting witness testified that, as the car, in which- the criminal act took place, was leaving the place where the act was perpetrated, the underside of the car struck some object and thereafter made a loud and peculiar noise, and a noise similar to' that which a car would make if its exhaust were not muffled. The alleged criminal act took place on the 13th day of the month, and it was not until the 21st day of the same month that the sheriff inspected the rock which it was claimed the car struck as it was leaving the scene of the crime. The sheriff testified that this rock had been moved from its position as if struck by some heavy object, and that he took from the top of this rock t'he small scrapings which he produced in evidence. We think it clear that the ■weight to be given this evidence was for the jury. The rock was at the location given by the prosecuting witness as the place where the car struck some object. The road in which this rock was located had not been graded and was a “prairie trail,” with very little travel. Appellant complains 'because eight days elapsed before this rock was examined by the sheriff, but in view of the entire record, we believe the question of whether this evidence was too remote to be admissible was for the trial court to' determine, and its determination will not, under the circumstances here presented, be disturbed. In any event this evidence would not be prejudicial. It is undisputed in this record that the car in which the unlawful act took place, struck something as it was leaving the place where the offense was committed. This the prosecuting witness testified to positively, and this fact stands undisputed in the record. The only answer made by appellant was that he was in a different county at the time. The effect of this testimony, if given any *536 weight by the jury, therefore, was simply to- corroborate a fact which was undisputed. The state’s attorney asked the following question of one of the witnesses: “Haven’t you heard rumors as to the defendant having molested some other gilds ?” The state’s attorney at the time was crossexamining the witness, Edna Atkinson, who was placed on the stand as a witness to testify to the defendant’s good reputation and for this purpose only. She testified concerning the defendant: “Hechas lived in that community ever since (Spring of 1929) and during that period of time I have been acquainted with his reputation 'for chastity, morality and virtue. That reputation has been good and it is good now as far as I know.” Following- this testimony the state’s attorney interrogated the witness as set out above, and an objection to the question by the defendant was sustained by the court. This is not a case where there has been an attempt to establish a crime by proof of another and independent crime, but a case where defendant has put in issue his reputation for, chastity and virtue. The rule is well settled that a witness testifying to good reputation may be cross-examined, for the purpose of testing his credibility, as to whether he has heard rumor of particular misconduct inconsistent with the reputation he has attributed tO' the person in question. Jones on Evidence, Section 2346; 22 C. J. 483; 20 Am. Jur., Evidence, 306; and the many cases cited in the texts. Under this general holding, we believe, the trial court would not have committed error had lie permitted the witness to answer. Had the witness been permitted to answer and answered the question in the affirmative, -the effect of her testimony that the defendant bore a good reputation for chastity, morality and virtue would have been substantially weakened. Being of the opinion the court could have permitted the witness to answer without committing error, certainly there was no error in the state’s" attorney propounding the question. The defendant had seen fit to place in issue his reputation for morality, chastity and virtue, and having done so he cannot now complain because the state’s attorney saw fit to ask a question upon cross-examination relative and pertinent to that reputation. In their enthusiasm for their respective causes, counsel on both sides of this litigation indulged in acts and made remarks which, to say the least, were not such as to receive a court’s com *537 mendation. The trial court was compelled on several occasions to caution counsel. On one of these occasions the court said: “Let the record show that at various times in the trial both 'counsel for the state and defendant have acted peevish in the matter but 'it doesn’t appear to the court that there is any prejudice and the court therefore says to both counsel to refrain from further remarks of that peevish nature.” After a careful review of the record, we are satisfied, as was the trial judge, that no prejudice resulted. The judgment and order appealed from are affirmed. ROBERTS and SMITH, JJ., concur. WARREN, P. J., concurs in result. POLLEY, J., dissents.