#### STATE, Respondent, v. YEAGER, Appellant.

(168 N. W. 749).

(File No. 4338.

Opinion filed September 3, 1918.)

1. Criminal Law — Rape—Time as Element — Proof of Later Act, Whether Permissible — Rule Stated — Limitations, How Affected? — Duty of Court, of Jury, Distinguished.

While, in a trial for the crime of rape, the precise time is immaterial, yet thei transaction charged is material; defendant cannot be tried for two crimes under a charge of one; nor can the state switch from one act which is evidently the one alleged in the information, and rest its case upon proof of another and later act; nor is the state barred from' proving such later act because thei proof establishes another date, unless the date proven shows the prosecution barred by limitations. So held, where the information, the opening statement, and evidence was that there was no error of date in the information, and that the act against which defendant was called to defend was that claimed to have been committed at a certain place. The real question always is, what particular alleged criminal act or transaction did prosecutor contemplate when drawing the information? If that is revealed of record on preliminary hearing, by the information, by an' opening statement, or by evidence, trial court must see to it that defendant is convicted of that particular act or tranaction, or else acquitted; otherwise court should require the state, not the jury, to elect as to which act or transaction verdict shall be based.

3. Same — Evidence of Later1, Earlier Acts, as Corroborative Proof, Competency — Rule of Evidence Stated.

The reason for the rulei admitting proof of subsequent as well as previous acts, in a prosecution for rape, and the limi*52tation upon the application of such rule, are substantial and meritorious. Experience teaches that unlawful voluntary sexual intercourse, is not the result of spontaneous outburst of illicit passion, but comes rather almost invariably as result of repeated and more or less continued importuning, love making and artful exciting of -passion, until natural chastity and fear of consequences are overcome-. So held, in a case where, information, opening statement, and evidence pointing to a particular transaction, evidence was admitted of commission of rape at a subsequent time and different place.

3. Same — Subsequent Act, Unsupported Testimony of Prosecuting Witness, Sufficiency — Subsequent, Distinguished from Previous Act — Rule Stated.

Where, in a prosecution for rape, state introduced the unsupported testimony of prosecuting witness to an act subsequent to that charged, held, that while the unsupported testimony of a-prosecuting witness as to previous acts and relations are receivable as explanatory of and thus corroborative of, evidence of the substantive act charged; yet such unsupported testimony as to a subsequent act — which act did not explain the former act, does not rise to the dignity of corroborative proof.

Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.

The defendant, Horace Yeager, was convicted of the-crime of rape, and he appeals.

Reversed.

*Null & Roy hi,*for Appellant.

*Clarence C. Caldwell,*Attorney General, and *A. A. Chamberlain,*State’s- Attorney, for -Respondent.

(1) To point one of the -opinion, Appellant cited:

•State v. Rig'g's, 25 S. D. 277; Code Civ. P-r-a-c. Secs. 224, 272; State v. Valentine, (-S-. D.) 63 N. W. 541; State v. Rash, 27 S. D. 185-; 22 Cyc. 407.

Respondent cited:

State v. Irwin, 17 S. D. 381; Shirley v. Commonwealth, 136 S. W. 227; 143 Ky. 143; State v. Tat-man, 132 S. W. 42; Cooper v. State, (Tex.) 162 S. W. 364; Bishop’s New Cr-im. Proc., sec. 454 (2).

(2) To point two, Appellant cited:

State v. 'Sysinger, (S. D.) 125 N. W. 897; Parkinson v. People, 135 111. 404, 10 L. R. A. 91, 25 N. E. 764; Wharton’s Criminal Evidence, 10th Edition, p-. 171; Lovell v. State, 12 Ind. 18; *53People v. Fo-wler, 104 Mich. 449, 62 N. W. 572; Smith v. State, (Tex.) 73 S. W. 401; People v. Ayres, 148 N. W. 383.

Respondent cited:

State v. Sheffield, (Utah) 146 Pac. 306; State -v. Sysinger, 25 S. D. no; State v. Rash, 27 S. D. 186; 1 Wigmore on Evidence Sec. 398; Wharton, Cr. Evi., 'Sec. 35; Rice. Cr. Evi., Sec. 537; Bishop, Statutory -Crimes, Sec. 682.

WH'ITING, P. J.

Defendant was convicted, of rape, and, appeals from, the judgment and an -order refusing a new trial.

The information filed in -circuit court charged ith-at the crime w-as -committed on February 20, 1914. In his opening statement to the jury the state’s attorney stated that “the state expects to show that along in February, 1914, * * * -defendant had intercourse with her [the complaining witness-] a-t — -in a coal -shed! at the schoolhouse; * * *” and evidence supporting s-uch statement was introduced upon the trial. The state, over objection, *was*permitted to introduce evidence tending -t-o pro-ve a separate and, distinct act of sexual intercourse, testified, by complaining witness, as occurring two months after the act occurring in the coal -shed. It was the claim of .the state -that it -had1 the right to prove these two- separate, distinct acts, either one as corroborative of the other, and, furthermore, that it -co-uld not be required tci elect as to which act it w-oul'd rely upon for conviction. The defense took the position that the state was bo-un-d- to- rely on th-e -coalhouse act as the basis- for conviction; and that proof, of no act occurring subsequent to the act relied upon- co-uld be received as corroborative evidence. The trial court agreed with the -state, and, by its instructions, -authorized- the jury to convict if they were able to- reach a unanimous verdict a-s to either -aot. The above facts present the most important question -before us.

[1] The state urges -that, inasmuch as time is not an element of the crime of rape, the ti-me alleged was immaterial, an-d! it -was competent to prove any -act occurring within the -statutory period of limitation-. The state overlooked a very important fact — while time is immaterial the transaction -charged is -material. A defendant cannot he tried! for two crimes .under a -charge -of one; neither, under the cl-aim that time -is -immaterial, -can the state -switch fiicm one act and rest .its -case u-pon -proof of another act. If there has been an error in the information as to- the true- time *54when the act charged was committed, the state is not barred from proving such act because of the fact that such proof establishes another daite unless the date proven shows the prosecution barred by the statute of limitations. It is absolutely clear frlom the information, the opening statement of the state’s attorney, and the evidence received1 that (there was1 no error of date in the information, and that the act against which defendant was called to defend was the act claimed to have been committed at the coal shed. For all the record shows, the jury may not have found! defendant guilty of that >aot, .but may have based their verdict on the other act. The reasoning in People v. Jenness, 5 Mich. 305, is peculiarly in point. In that case evidence of previous acts had been admitted, “not as substantive offenses, but in explanation and corroboration of the evidence of the act charged in the information.” The court says:

“But after the evidence had been admitted for this purpose, the prosecuting attorney changed bis ground, and claimed that the jury might select any one of the acts on which evidence had been given as the ground of their verdict. * * * The prosecution claimed that any act of intercourse proved was the offense charged. The court gives them nioi information on the subject. It was a question of law, important for the government of .the jury. He leaves it to them to ascertain. Will the jury be likely to fin'di it out if the court cannot? But the third' paragraph of the charge clearly adopte tire theory of the prosecuting attorney, and holds- -that any tone of the several acts of sexual intercourse proved, or attempted to be proved, may be selected) by the jury as the ‘offense charged,’ and that they may find the defendant guilty of the one thus selected1; as he tells them1, ’they may find him guilty if, from the evidence, they believe that -the act was not committed at the Howard House, but was -Committed at some other place in the city of Detroit, within the period of six years prior to ithe time of filing this information.’ Now, there was no dispute whether that particular act of intercourse stated to have occurred at the Howard House, occurred there or at some -other place in the city, nor 'whether it occurred at a period materially different from that stated by the witness; and neither the jury nor this court could -possibly derive any other understanding from this charge than that the jury were at liberty to select among the numerous acts of intercourse in the city of Detroit *55of which evidence had been given, and to find the defendant guilty of the act so selected. This was subjecting the -defendant to the risk of conviction u-pon a great number of acts, occurring at .different times and pl-aces, against which he coiuld not be expected to be -prepared to defend. * * * The jury -cannot be thus sent fishing for ¡the charge which they are to try. * * * Under such1 a 'charge it would always: be legally, impossible to. know o-f what particular charge the defendant had been actually found guilty.”

See, also, State v. Rice (N. D.) 168 N. W. 369, for discussion of this question and a -review of People v. Jenness, supra.

Thus- the real -question always- is: What particular alleged-criminal act or transaction did the prosecutor have ini mind when he drew his information'? If that is revealed by the record upon a preliminary hearing, by the wording of the information itself, by an ¡opening statement o-f the prosecutor, or by the evidence, the court must see to it that the defendant is convicted of that particular act or transaction or else acquitted. If the particular act or transaction relied upon is not .made clear to the -court through lone or more of the means1 ¡above indicated), the court ¡should1 then require the ¡state, *and not the jury,*to elect as to which alleged act or -transaction the verdict shall be based upoln.

[2] There is another -question which will probably rise upon another trial, and -which therefore we feel -called upon to consider. The act testified to as occurring in the -coal shed being the act upon which the conviction) must rest, was it competent for the state to -introduce as ¡corroborative proof evidence tending to- pro-ve an act two months later in date? Defendant -does not question -the propriety, in- cases of this nature, of the receipt of evidence of prior intercourse, but says that the reasons that support the rule admitting evidence -of prior acts do not apply to proof of subsequent acts. Human experience .teaches that unlawful, voluntary sexual intercourse, especially where the female -is under the -age of consent, is -not the result of the spontaneous outburst of illicit passion, but comes- rather almost -invariably as- the result -o-f repeated and more o-r less continuous importuning, lovemalcing, and artful excitement of the passions, until the sense of modesty, the natural chastity, the fear of -consequences — all of which would naturally restrain the girl from -giving way to lustf-ul desires — are overcome and an illicit intimacy established. The reasons for the rule admit*56ting proof of subsequent as well as' previous acts, and the limitations upon the application of such rule, are most clearly stated in Bishop on ■ Statutory Crimes, § *682*quoting from the decision in Thayer v. Thayer, 101 Mass, 117, 100 Am. Dec. 110:

“An adulterous disposition existing in two¡ persons ¡towards each other is commonly of gradual development; it must have some duration, and1 does not suddenly subside. When once shown to, exist, a strong inference arises that it has had ¡and will have continuance, the duration and extent of which may be usually mea-’ sured by the power which it exercises over the conduct of the parties. It is this character of permanency which justifies the inference of its existence, at any particular point of ¡time, from facts illustrating the preceding or subsequent relations of the parties. The rule is that a condition' once proved is presumed to have been produced’ by causes operating in, the usual way, and to¡ have continuance till /the contrary be shown. The limit, practically, to the evidence under consideration is that it must be sufficiency significant in character, and' sufficiently near in point of time, to have a tendency ‘to lead the guarded discretion of a reasonable and just man’ to a-belief in the existence of this- important element in the fact to be proved, If -too- remote or insignificant, it will be xejected, in the discretion, of the jxxdge who tries the case.”

.To1 the same effect see ¡the ¡discussion .in 1 Wigniiore on. Evidence, §§ 398-402. We cite Ibuit a few¡ lof the many ¡cases wherein the courts have sustained the rule announced by Bishop and Wig-more. The cases cited are xieaxdy all, like the one before us, ¡cases of rape charged to ¡have beexx committed .on a girl under age of consent, but ¡where- the girl actually consented. State v. Stone, 74 Kan. 189, 85 Pac. 808; State v. Brown, 85 Kan. 418, 116 Pac. 508; Morris v. State, 9 Okl. Cd. 241, 131 Pac. 731; People v. Koller, 142 Cal. 621, 76 Pac. 500; Sykes v. State, 112 Tenn. 575, 82 S. W. 185, 105 Am. St. Rep. 972; Levy v. Ter., 13 Ariz. 425, 115 Pac. 415; State v. Robertson, 121 N. C. 551, 28 S. E. 59; State v. More, 115 Iowa, 178, 88 N. W. 322; State v. Roby, 128 Minn. 187, 150 N. W. 793, Ann. Cas. 1915D, 360.

[3] But the -facts of this case present another question. The only proof of the subsequent act was the naked, unsupported, -testimony of the prosecuting witness, testifying to ¡a subsequent act, While the naked, unsupported testimony of a prloisecxxting witness *57as to previous acts and' relations may foe and) should be received, when same -is. explanatory of, and. thus corroborative of, evidence as to the substantive act charged, yet such unsupported testimony as to the subsequent act- — which act, if it occurred, in no -manner explained the former act — did' mot rise ta the dignity of. corroborative proof. Smith v. State (Tex. Cr.) 73 S. W. 401.

The judgment anidi order appealed from' are reversed.