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section it, township 123, range 50; thence in a southeasterly direction through section 10, 14, 13 and 12, township 123, range 50 and 7, 18, 17, 21, 22, 28 and 27, in township 123, range 19; thence through the Dry Run to Big Stone Lake or thiough Bull Head Lake to the Whetstone, whichever may be found the most practicable.” From an examination of the map it appears that, if the ditch complained of is a part of the one petitioned for, the land of the plaintiff comes within the description "thence through Bull Head Lake to the Whetstone." No description oi lands is given otherwise than as above set forth, nor is it apparent where the “Whetstone" is, or what it is. There is nothing in the case, except inferentially, to show that the ditch petitioned for is the one about which appellant complains.

It is reasonably clear that the appellant has suffered some damage at the hands of Knorr Bros. The chief damage proven is in regard to the disposal of rock and other material taken from the bed of the ditch. If it be assumed that they were acting under contract with the county, it does not appear that such acts inflicting damage were within the scope of their contract. If they were acting within the scope of their contract, then the refusal of the court to open the case and allow the appellant to offer the drainage proceedings in evidence would appear to be an abuse of discretion. Suppose the case be reversed on that ground or upon the ground that the court erred in directing the verdict, what disposition can be made of the costs on appeal? The county is not liable therefor out of its regular funds. There is nothing to show that there is any drainage fund out of which it could be paid, nor that the county is in position to levy an assessment against any property to pay such costs.

If it be assumed that Knorr Bros. were acting under direction of the county board and it should appear that the acts of the board were unauthorized, then the individual members of the county board might be liable, but they are not parties to this case.

A careful review of the evidence convinces us that the only cause of action proven on behalf of plaintiff is against Knorr Bros., and they were not made defendants in this case.

We are reluctant to decide a case upon grounds not raised in the briefs. In this case, however, the defendant is a public corporation. It is not liable for the payment of damages that might have been recovered in this case except in so far as it has funds in its control derived from the drainage project, or in so far as it might hereafter cause an assessment to be levied to pay for such damages. Nothing has been shown that would bring the liability of the county within these exceptions; nor can we assume that it would have been shown if the drainage proceedings had been received in evidence.

In view of the unsatisfactory condition of the record and in view of the pendency of the other action, in which it would seem that appellant can get relief, we are of the opinion that the judgment of the trial court should be affirmed.

WHITING, J. I concur in the result reached in the foregoing opinion. Appellants' brief fails to present a sufficient state. ment of the record to be entitled to consideration by this court.

STATE, Respondent, v. PERKINS, Appellant.

(141 N. W. 364.) Rape-Assault with Intent to Commit Rape-Sufficiency of Evidence.

The intent is the gist of the offiense of assault with intent to commit rape, and mere proof that accused placed his hand on the private parts of a child aged seven years and tickled her, does not prove such intent.

(Opinion filed May 6, 1913.) Appeal from Circuit Court, Lawrence County. Hon. WILLIAM G. RICE, Judge.

The defendant, David Perkins, was convicted of the crime of assault with intent to commit rape, and he appeals. Reversed, and new trial granted:

Harry P. Atwater, for Appellant.

Accepting the evidence of the state as being absolutely true, we contend that there is not sufficient evidence for a jury to say that the defendant intended to commit the crime of rape. It is not the purpose of defendant to contend that it is necessary to have the consent of the assaulted, but it is the contention that there must be some evidence showing the intent to commit the crime charged, and though the defendant may have taken some liberties with the person of the child there is no evidence from which it could be said that it was the intention of the defendant to commit the crime of rape.

In the the case at bar the defendant is shown to be a mani somewhat advanced in years, married, and living with his wife in adjoining property. The scene of the alleged assault was in a very public place, and not in such a place as would likely be the scene of such a crime. The evidence shows that not only was this close to the home of the young girl, but close to the home of the defendant, and that the scene was right in view of an alley which was used as a common passage way through which a number of people passed in going to and from their homes.

We find that nearly every state where such convictions have been held there was a statute making it criminal to take indecent liberties with the person of a female and under the laws of the state of South Dakota there is no such statute. We believe the rule is laid down properly in 33 Cyc. 1335:

“Mere solicitation is not sufficient to constitute either an attempt or an assault with intent to rape. It is also necessary that there shall be an intent to have intercourse with the girl, and not merely to take indecent liberties with her person; and the assault and intent must concur as to time.

“Before there can be a conviction in such a case there must be not only the criminal intent but overt acts towards the commission of the offense must be proven, and the attempt must progress sufficiently towards execution to clearly show the criminal intent of the defendant.” In re Lloyd, 33 Pac. 307, 51 Kan. 501; Croomes v. Texas, 40 Tex. Cr. R. 672, 51 S. W. 924, and 53 S. W. 882.

"The intent is the gist of the offence, and every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have sexual inter

Indecent liberties may be taken with a child without any such intent." Id., citing, People v. Sheffield, 105 Mich. 117, 63 N. W. 65.

"There must be some circumstances in the case as will demonstrate the purpose and intent of the party charged to have carnal knowledge of the female under the age of consent." State v. Riseling, 186 Mo. 521, 85 S. W. 372. Also, O'Brien v. State, 40 S. W. 969.

“That a man may have produced in the mind of a female a sense of shame or other disagreeable emotion is not sufficient to

course.

constitute an assault with intent to rape.” Fewox v. State, 90 S. W. 178.

"To constitute assault with intent to rape a girl under fifteen there must be a taking hold of the girl in such manner as to indicate the specific intent to have carnal knowledge of her and the mere fact that an accused may have produced in the girl's mind a sense of shame or other disagreeable emotions or constraint is not sufficient." Carter v. State, 70 S. W. 971; Hudson v. State, 90

S. W. 177

There having been no evidence that should have been submit. ted to the jury, it was the duty of the court to grant a new trial, and in denying plaintiff's motion for a new trial court erred.

In reply.

Appellant admits that there is a slight conflict in the testimony; however, appellant's contention is not that the verdict should be set aside because of the conflict of the testimony, but that the verdict should be set aside for the reason that there was not sufficient legal testimony to sustain the verdict. That regardless of any conflict in the testimony, the state failed to make out a case. In nearly all of the cases cited by the attorney general, the rule is recognized that there must be legal testimony to sustain the verdict, regardless of any conflict in the testimony.

In an outburst of eloquence, the attorney general says: “Is there language vile enough to express one's contempt for a character so low and degraded that it would burden this girl's memory with an assault of this nature upon her person?” It was doubtless such passionate out-bursts as this on the part of the state's attorney, whose eloquence is well known, that procured this verdiet at the hands of this jury.

But this court is above appeal to passion. A clear question of law and justice is here presented. A citizen of this state is suffering punishment for a crime no sufficient testimony of which has ever been submitted to a jury of his peers. There is nothing more repugnant to our system of law.

Royal C. Johnson, Attorney General, M. Harry O'Brien, Assistant Attorney General, and John T. Heffron, State's Attorney, for Respondent. 29-Vol. 31, S. D.

It is the contention of the state that the evidence is sufficient to sustain the verdict. The testimony of the state, with slight conflict, if any, is thoroughly corroborated by the testimony of the defense. The statements by the complaining witness as to time, place and events are all sustained by the testimony of her mother, Carrie Hayes, and other witnesses.

The only testimony conflicting with that of the state is found in portions of the testimony of the defendant himself, while the preponderance of the evidence shows that after the act was committed Dorothy went into the house and told her mother, who 'immediately ran out, but the defendant had gone. The defendant testifies that he waited in the alley ten minutes after the little giri went into the house. (App. brief, f. 41).

What object would the defendant have in waiting in the alley ten minutes after the act was committed at 11:30, when he had his baggage and beans to pack up and his car to load and his lunch to get before the train left at five minutes after twelve ?

The decisions of this court have repeatedly held that it will not reverse the judgment of the trial court on the ground that the evidence did not justify the verdict where the evidence was conflicting and the trial court, on motion, declined to vacate the verdict of the jury. State v. Rash, 27 S. D. 185, 130 N. W. 91; State v. Callahan, 18 S. D. 115, 99 N. W. 1100; Vol. 1, Hills' Dak. Dig., 147-155; Vol. 2 Hills' Dak. Dig., 95-99; Territory v. Keys, 5 Dak. 244, 38 N. W. 440; also, Jackson v. State, 91 Ga. 322, 44 A. S. R.

The only other assignment goes to the sufficiency of the evidence to sustain the verdict; it being claimed that the evidence fails to show that the assault, if any was committed, was committed with intent to commit the crime of rape.

No beneficial purpose would be subserved by detailing the evidence herein. Sufficient is to state that to our minds it conclusively shows that the appellant committed the assault charged, and that it was done with the intent alleged. It shows that the appellant took indecent liberties with the person of the complaining witness, and it is not material whether such liberties were taken against the consent of the complaining witnesses as claimed by the state in this case, or whether such liberties were taken with her consent. The complainant being under 18 years of age could not consent to the

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