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STATE v. JAMESON

No. 10045.

123 N.W.2d 654 (1963)

STATE of South Dakota ex rel. Joseph John RUFFING, Petitioner and Respondent, v. G. Norton JAMESON, as the duly appointed, qualified and Acting Warden of the South Dakota State Penitentiary, Defendant and Appellant.

Supreme Court of South Dakota.

October 9, 1963.

Attorney(s) appearing for the Case

A. C. Miller, Atty. Gen., Gerald L. Reade, Richard Hopewell, Asst. Attys. Gen., on the brief, Pierre, for defendant and appellant.

John R. McDowell, of Boyce, Murphy & McDowell, Sioux Falls, for petitioner and respondent.

BIEGELMEIER, Judge.

Petitioner Ruffing as defendant pled not guilty to an information filed in Gregory County of the Eleventh Judicial Circuit charging him with the crime of second degree rape of a female, not his wife, under 18 years of age, to wit, 16 years of age. In the ensuing trial, the trial judge gave the following instructions to the jury:

"8.

"A smaller crime than rape is provided for under another criminal law which makes it a crime for...

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