79 Neb. 241 | Neb. | 1907
Sim Burk, hereafter called the defendant, was convicted of the crime of statutory rape on the person of one Flora McMahon, and was sentenced by the district court for Richardson county to imprisonment in the state penitentiary for a period of three years. To reverse that judgment he has brought the case here by a petition in error.
The information on which he was tried contained three counts. The trial court, however, withdrew the second and third counts from the consideration of the jury, and he was convicted on the first count of the information, which charged him with having carnal knowledge of the prosecutrix, with her' consent, on the 29th day of April, 1.904, she being a female child of the age of 16 years, not previously unchaste, and he being a male person over 18 years of age.
The first question argued in the defendant’s brief is the contention of his counsel that the evidence is not sufficient to sustain the verdict, for the reason, among other things, that the evidence of the prosecutrix as to the principal fact is wholly uncorroborated. This question will not be considered in the order in which it is presented, but will be referred to hereafter.
It is next urged as one of the grounds for a reversal of the judgment that the trial court erred in instructing the jury as follows: “First. — The jury are instructed that, when the defendant testifies in this case, he becomes as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally, applied to any
It is also contended by the defendant that the court erred in too often directing the attention of the jury to the fact that his interest in the result of the prosecution should be taken into consideration by them in determining the weight and credibility of his evidence. It will be observed that this statement was made a prominent feature of the instruction above quoted. This fact seems to have been also referred to in paragraph No. 3 of the instructions, and it was again referred to in paragraph No. 4. Now the jury knew, as well as the counsel and the court, that the defendant had a great and peculiar interest in the result of the prosecution, and that fact was unduly emphasized and was kept prominently before them by the instructions complained of. In the case of Clark v. State, 32 Neb. 246, it was said: “Where a person on trial for a crime testifies in his own behalf, the court may
Having concluded, for the foregoing reasons, to reverse the judgment in this case, it is not absolutely necessary for us to consider the sufficiency of the evidence. We do not think, however, it would be out of place for us to briefly state our view concerning that matter. The prosecutrix testified as to the principal fact, in substance: That she went to the defendant’s store, which is situated in the village of Rulo, in the daytime, during business hours, on the 29th day of April, 1904, to buy a,pair of shoes; that the defendant, who was alone in the store at the time, told her that he would like to have sexual intercourse with
It further appears that there bad been a fire in the same block in which the defendant’s store was situated on the morning of April 29, and there were many people congregated on the street and in front of the store looking at the burning embers and talking over the matter of tlu* fire, and yet no witness is produced who saw the prosecutrix enter or leave the store on that occasion. It is contended by the state, however, that she was corroborated by the evidence of her father and mother, which is, in substance, that the defendant came to their house sometime in April, 1905, and said to the prosecuting witness : “What is that I hear about your charging me with being responsible for your condition. You know it is not so, and you cannot look me in the face and say I am the cause of your condition.” That she looked him in the face and
There is another feature of this case which should properly receive our consideration. In order to establish the defendant’s guilt, it was as necessary for the state to prove beyond a reasonable doubt that the prosecutrix was not previously unchaste, as it was to establish “the principal fact beyond such doubt. There is no evidence of her previous chastity except her- own declaration, and this is discredited by her statement to the county attorney when she applied to him to prefer charges against young Sweinfurth, instead of the defendant, that she had previously had sexual intercourse with other men.” Again, the record discloses that about nine months before she was delivered of her illegitimate child she ran .away with Sweinfurth to Hiawatha, Kansas, and remained there over night with him; that her father telephoned to the sheriff at that place and had him bring the couple back to Rulo. It was also shown by the testimony of Mrs. Amanda Johnson that some three years before the trial took place, and before she claimed to have had sexual intercourse with the defendant, the prosecutrix was working for her; that she was keeping boarders, and that a young man by the name of Emmet Asher, who boarded with her, was keeping company with the prosecutrix; that on one occasion in the evening the prosecutrix and Asher locked themselves up in a room in her house and turned out the light; that, when she noticed that fact, she went round to the outside door and rapped, and demanded that the door be opened; that it -was thereafter unlocked, and, when she went in, she found them in a compromising sitution; that she compelled them to open the door between the room where they were and her sitting room; that later on she again found that door closed and locked, and on its being opened she found Asher.and the prosecuting witness
Again, the prosecutrix testified in this case that she went to the county attorney for the purpose of filing a complaint against young Sweinfurth, charging him with the same crime for which the defendant herein was prosecuted; that, when asked why she did this, she testified that the defendant had offered her f 150 if ^she would place the blame on Sweinfurth; that she was willing and intended for that sum to go into court and testify that young Sweinfurth was the author of her misfortune; that she was willing to commit perjury for that sum of money, and endeavor to procure the conviction of one who she now says was an innocent man.
We think we have sufficiently reviewed the evidence, and it seems to us that the.prosecuting witness not only lacks satisfactory corroboration, but there is grave doubt of her' previous chastity, and of the defendant’s guilt. If this case is to be tried again, it would seem necessary for the state to produce at least some evidence corroborating the evidence of the prosecuting witness as to the principal fact on which this prosecution is based, and of the previous chastity of the prosecutrix.
_ For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceedings according to law.
Reversed.