Day v. State

102 Neb. 707 | Neb. | 1918

Dean, J.

Defendant was convicted under section 8588, Rev. St. 1913, of the crime of statutory rape, and sentenced to serve a term of not less than three years in the penitentiary. He prosecutes error.

It is argued that the verdict is not supported by the evidence; that the testimony of May Bader, the prosecutrix, is not corroborated, and that the court therefore erred in giving the instruction numbered 11 that appears in the syllabus.

Defendant was twenty-six. May Bader was fourteen. She was working at an Albion hotel when defendant called on her there at about 7 o ’clock on Sunday evening December 16, 1917, and on his invitation she went car-riding with him and a young man named Pox a few miles into the the country, to a place where a sixteen-year-old girl friend of Pox and ,the prosecutrix was working. The party returned to Albion at about 8 and went together to an unoccupied three-room apartment that had recently been rented by Pox and his mother, but into which they had not yet moved,. In this apartment, unfurnished except for some chairs, a cabinet, and a stove, defendant and May Bader and Pox and his girl companion remained from 9 at night until about 6 the next morning.

The prosecutrix testified that she and defendant occupied one of the rooms, and that he there had sexual intercourse with her. She said that Pox and the other girl occupied another room. The latter testified that, by the aid of a- flashlight, she saw defendant and the prosecutrix lying on the floor in a compromising position. It is seldom that the offense in this class of cases is so clearly proved.

Respecting corroboration, it appears that shortly after his arrest defendant made a voluntary statement to the sheriff that in effect corroborated the evidence of the prosecutrix as to the principal fact constituting the crime. There was other corroborative evidence tending to support that of the prosecutrix on the same point that it is not necessary to discuss here.

The instruction appearing in the syllabus was given by the court. Defendant in his testimony denied that he had sexual intercourse'with the prosecutrix. It was not error to give the instruction. Hammond v. State, 39 Neb. 252.

' The testimony of the prosecutrix was amply corroborated. Reversible error does not. appear in the record. The judgment is

Affirmed.

Rose and Sedgwick, JJ., not sitting.