96 Neb. 777 | Neb. | 1914
The defendant (plaintiff in error here) was convicted in the district court for Gosper county of the crime of assault with intent to commit rape, and has brought the case here for review upon petition in error. The defendant on September 4, 1913, took his wife and children to her father’s for a visit. His wife expected him to take her and the children home on the next or the following day. He had trouble with his automobile tire and had it repaired, and on the next day, September 5, he took the complaining witness, Mr. Zike, who was. a rural mail carrier, around the mail route in defendant’s automobile, arriving at Mr. Zike’s home in Edison soon after 4 o’clock in the afternoon. He had supper with Mr. Zike’s family, and afterwards,, with Mr. Zike’s consent, took Mabel, Mr. Zike’s daughter, a girl not then quite 15" years of age, home with him, some 24 miles distant from Edison, where they stayed all' night, no one else being in the house. The girl testified emphatically to the commission of the crime by defendant when they occupied the same bed that night. No discussion of the details of the crime as testified to by her is necessary to an understanding of the questions of law presented.
The defendant as emphatically denied all criminal conduct on his part. The principal question is whether the testimony of the girl is sufficiently corroborated to justify the verdict of the jury. The opportunity to commit the
The defendant presents 26 separate instructions which he requested the court to give the jury; all of them were refused, and the court on his own motion gave the jury 12 instructions, to each and every one of which the defendant took exception.
The information charged the defendant with the crime of rape, and in the first instruction, after defining that crime, the court defined the crime of assault with intent to commit rape, and submitted that question also to the jury. The objection made to this is: “The testimony, on the one hand, was a completed act; on the other, total innocence. There was no evidence of an assault with intent to commit rape other than the evidence of the completed act of rape. ‘If the evidence in this case failed to justify returning a verdict of guilty of rape,’ there was no evidence of assault with intent to commit rape, and the court erred in giving an instruction thereon ‘without testimony to sustain it.’ ” The defendant cites Fager v. State, 49 Neb. 439, in which it was held: “When the evidence entirely fails to show an offense of a less degree than that charged in the information, it is not prejudicial error to omit to give an instruction defining an offense of such less degree.”
It does not follow that, because the court was not required to submit the question of the lesser crime, it was prejudicial error to do so. The evidence is, as contended, that the defendant completed the act constituting the crime charged, and there is no other evidence of any assault. But the crime of rape cannot be committed without an assault with that intent. The latter is necessarily included
In the seventh instruction given by the court the girl, Mabel Zike, is referred to as “the prosecutrix.” The complaint before the examining magistrate was, in fact, made by her father, and the information on which the trial was had was signed by the county attorney, so that the girl was not, in fact, the prosecutrix, and ought not to have been so described; but from the nature of the instruction, which it is not necessary to quote, it seems impossible that the defendant conld have been prejudiced by this oversight.
Instruction No. 10, given by the court, is objected to, and also 15 or 20 specified rulings of the court in receiving or rejecting evidence. For the purpose of laying a foundation for impeachment, Mr. Zike, while on the witness-stand for the state, was asked questions by defendant’s counsel in cross-examination that had no relation to the evidence he had given in chief, and when witnesses were called by defendant to contradict his evidence so given they were allowed to testify at large as to a statement made by Mr. Zike out of court, without any regard to the ordinary rules for impeaching witnesses. This practice was participated in by both parties, and the trial court managed the investigation, about as well as could be demanded under the circumstances. Neither party ought now to take advantage of errors of practice in which both participated. We cannot discuss all of these assignments of error, but we have not found any such prejudicial error as appears to require a reversal of the case.
The judgment of the district court is
Affirmed.