State v. Rust , 66 S.D. 12 ( 1938 )

The defendant was convicted of rape in the second degree. The prosecutrix, Laura Belle Irvine, at the time of the commission of the offense, was sixteen years of age. Thereafter, a motion for new trial was made and the motion denied. An appeal was taken from the judgment and order denying the motion for new trial.

[1] Among the assignments of error we find various objections and motions which the appellant made during the course of the trial relative to the presence of the child of the prosecutrix in court. The record before us has been examined and we do not believe that the child's presence was prejudicial error for the reason that the trial court acted promptly in the matter when his attention was called to the presence of the child through the objections of counsel.

[2] The instructions given by the trial court in this case seem to clearly cover all of the matters to be considered by the jury and we therefore do not believe that the court erred in refusing to give any of the requested instructions. The instructions given by the trial court seem to fall within the rules of law which have been sustained by this court in a number of cases involving similar crimes. We have carefully examined the record and believe that there is sufficient evidence to sustain the conviction. The trial court passed upon the sufficiency of the evidence upon the motion for new trial, concluding that the evidence was suffiicient. This court does not feel that it can, from the record, find that there is not sufficient evidence to sustain the conviction, and we must therefore abide by the result found by the triers of facts who were present, heard the testimony given, and observed the conduct and demeanor of the witnesses while giving their testimony.

The record has been examined as to other errors complained of, and, upon consideration, we conclude that the record does not contain harmful or prejudicial errors warranting a reversal.

The judgment and order appealed from are affirmed.

All the Judges concur.