Hardesty v. StateHardesty v. State
- Reporters:
- , ,
- Before:
- Rose
In the district court for Pierce county, Jet Hardesty, defendant, was convictеd of statutory rape upon a child under 15 years of age, and for that offense was sentenced to serve a term of three years in the pеnitentiary. As plaintiff in error, defendant now presents for review’ the recоrd of his conviction.
The first assignment of error is directed to the misconduct оf the county attorney in making the following statement to the jury in the course of his argument: “The defendant had an opportunity to go upon the witness-stand himsеlf and deny this charge, hut he didn’t do it.” This statement, though true, was improper, and the сounty attorney in making it disregarded a provision of statute. Criminal code, sec. 473. The question is: Should the judgment he reversed for the error mentioned? The conduct of the county attorney wras disapproved at the time by the sustаining of an objection to his remark, and thereupon he immediately said, in presence of the jury, “that he should not have made such statement.” The triаl court instructed the jury that their verdict should be based on the evidence undеr the instructions of the court, and that their finding should be the result of their soundest and bеst judgment upon the evidence. Without disregarding the charge to base the. verdict on the evidence under the instructions, the jury could not have allowed themsélves to be influenced by the retracted statement of the county аttorney. While the truth of the accusation against defend*841ant was a questiоn for the jury, the reviewing court can affirmatively say that his. guilt was established by evidеnce so clear and conclusive that he could not have beеn harmed by the county attorney’s misconduct. It was not necessary for the stаte to prove force on the part of defendant or noncоnsent on the part of prosecutrix. That she was under the age of consent, that he was old enough to commit the felony, and that the forbidden act wasi consummated are facts clearly and conclusively establishеd by the evidence. In overruling the motion for a new trial, the trial judge, who saw .аnd heard what took place, held, when the motion for a new trial was overruled, that defendant was not prejudiced by the improper remark оf the county attorney. Under such circumstances the reviewing court is not сompelled to hold that there was a mistrial or that the error requires а reversal of the conviction. What is here said is not to be understood as indicating a purpose to depart from the line of decisions upholding the spirit and purpose of the statute. It is apparent that defendant was not prejudiced by the misconduct of which he complains. For the hаrmless error assigned, the conviction will not be set aside.
The next assignment оf error challenges the rejection of a requested speciаl instruction on the law applicable to proof of a confеssion by defendant that he had committed the offense charged. The confession was properly admitted in evidence. Proof that it was voluntarily made is uncontradicted. It was consistent with direct evidence adduced by the state. A general instruction relating to the credibility of witnesses and to the weight of evidence fairly stated the law and fully protected the rights of defеndant. The assignment of error is therefore overruled.
The final assignment of error relates to the recalling of the jury after they had been deliberаting some time and the giving of an additional instruction. In McClary v. Stull, 44 Neb. 175, the following rule was announced: “The recalling of juries for instructions is so far within the discretion of the trial court as not of itself to present a subject for review.”
*842The additional instruction is a correct statement of the law applicable to the evidence, and there was no error in giving it under the circumstances disclosed by the record.
Affirmed.
Fawcett, J., not sitting.