69 Neb. 386 | Neb. | 1903
Edwards was tried in the district court for York county upon an information charging him with having had sexual relations with Ruby L. Robinson, a female child under the age of thirteen years. The jury found him guilty and he was sentenced to imprisonment in the penitentiary for a term of three years. It was neither alleged nor proven1 that the girl was not the daughter or sister of the accused, and this is the first point urged against the conviction.
Numerous assignments of error are based upon rulings of the court permitting leading questions to be put to the witness, Rúby L. Robinson. The manner in Avhich Avitnesses shall be examined is a matter over which the trial court has a very large discretion. Schmelling v. State, 57 Neb. 562; Welsh v. State, 60 Neb. 101. In this case that discretion was not abused. On the contrary it was, we think, exercised Avith judgment and discrimination.
The ruling of the court sustaining an objection to a question asked on cross-examination of Ruby L. Robinson is assigned as error. We need not inquire whether the ruling was right or wrong as the identical question was
It is next insisted that the testimony of the prosecutrix lacks adequate corroboration and that the evidence is insufficient to sustain the verdict. We should be glad to accept this view of the matter if it had a reasonable basis in the record, but unfortunately it has not. Miss Robinson’s story is not incredible, and it is greatly strengthened by circumstances which the defendant himself admits. Confirmation of the most persuasive, kind is found in the testimony of Myrtle Johnson, who says that she saw Edwards and Ruby together at the time in question and actually witnessed the alleged criminal act.
It is contended that the venue of the crime was not proven, but in this counsel for defendant are mistaken. The evidence upon this point is plain, positivé and .ample.
Complaint is made because the court failed to instruct the jury that there could not be a conviction without evidence corroborating the testimony of the prosecutrix. The jury were told that they could not convict the defendant unless convinced by the evidence beyond a reasonable doubt that he was guilty as charged, but they "were not informed that corroboration is indispensable in cases of this kind. There is authority for the claim that such an omission is reversible error, but the decisions of this court establish a contrary doctrine. The defendant having failed to tender an instruction embodying the idea that corroborative evidence was essential, the trial court was not in fault. Carleton v. State, 43 Neb. 373; Reynolds v. State, 53 Neb. 761; Johnson v. State, 53 Neb. 103; Maxfield v. State, 54 Neb. 44. Bee also 11 Ency. Pl. & Pr. 247, where a full collection of the cases bearing upon this question will be found.
I.t is contended that the court erred in not telling the jury that the punishment for the crime charged was imprisonment in the penitentiary for not less than three nor more than twenty years. There is, of course, no merit in this contention. It was the business of the jury to deter
The court said to the jury in the 5th paragraph of the general charge:
“The law raises no presumption against the defendant; on the contrary the presumption of law is in favor of his innocence. This presumption of innocence continues through the trial until every material allegation in the information is established by the evidence to the exclusion of all reasonable doubt. ”
The criticism upon this instruction is that it permits a conviction without proof of guilt beyond a reasonable doubt. We think the language employed by the court is apt and entirely accurate. The distinction between the state of a mind convinced beyond a reasonable doubt and the state of a mind from which all reasonable doubt has been excluded is too subtle and elusive to be of practical value in the administration of the criminal law. A mind from which every reasonable doubt has been excluded is not, we suppose, more likely to convict than one that- has passed over every such doubt.
It is contended that the charge of the court on the subject of reasonable doubt is erroneous, but our own decisions furnish a conclusive answer to that contention. Bartley v. State, 53 Neb. 310, 359; Carrall v. State, 53 Neb. 431, 438. In the cases cited the instruction here in question was considered and not disapproved. It has, to be sure, no special merit; the definition which it gives is, perhaps, less intelligible than the phrase defined, but that may be said of the common run of such instructions.
There is no material error in the record and the judg- - ment is therefore
Affirmed.