92 Neb. 14 | Neb. | 1912
Lead Opinion
The defendant, who is plaintiff in error here, was convicted in the district court for Hall county of the crime of statutory rape upon one Mary Waddick, then under 15 years of age. He alleges that the complaining witness is wholly uncorroborated; that the evidence is entirely-insufficient to support the conviction; that by various erroneous rulings of the trial court he was prevented from having a fair trial; and that the prosecuting attorney was guilty of misconduct which tended to prejudice the jury against him. When the first complaint was filed against the defendant, it was charged that the crime was committed on the first day of May, 1911. In a second complaint it was alleged that it was committed on the first day of April, and in the indictment afterwards found by the grand jury it was charged that the crime was committed on the first day of May. This indictment was returned on the 15th day of November, 1911. The complaining witness gave birth to a fully developed child on the 21th day of November, 1911. The complaining witness testified that she went into defendant’s store in the evening and asked to see a pair of roller skates; that the defendant, who was alone in the store at the time, showed her a pair of skates, and told her that the price was $3.50; that she told him she couldn’t buy them for she hadn’t the money,
1. The principal question as to the sufficiency of the evidence to support the conviction depends upon the corroboration of her testimony. It has been uniformly held that in such prosecutions a conviction cannot be sustained upon the wholly unsupported testimony of the complaining witness. It was shown by a clerk of the defendant that early one morning in the fore part of March the prosecuting witness brought a pair of roller skates- to •the store, and that he was told by the defendant to oil them for her, which he did. There was, however, no dis
The defendant ivas a witness in his own behalf, and denied emphatically and positively ever having had intercourse with her or having taken any liberties with the complaining witness. He testified that, when she said that she could not buy a pair of skates at $3.50, he showed her a pair that had been hanging in the show window and offered to sell them to her for $2; that she said she did not have that much money, but had some, and that she was working and would pay 75 cents on the skates and the remainder in a week or two. He agreed to that, and told her to get her 75 cents. This was in the afternoon, and a couple of hours later, in the evening, she returned, paid her 75 cents and took the skates. She brought them in the next morning and had them oiled, as the other witness testified. If the evidence of the complaining witness was corroborated, it is, so far as we can see, in the cross-examination of the defendant himself. He testified that the skates were procured from him oh the 25th of March, after he returned from Illinois, and to substantiate this testimony he offered in evidence a slip of paper on which was written the name of the complaining witness, the charge of $2 for the skates, and the credit of 75 cents, showing a balance due of $1.25, and bearing the date of March 25, 1911. This memorandum he testified was made at the time, or soon after the transaction. He was not certain whether he or his clerk made it. If he falsely dated this memorandum for the purpose of deceiving the jury, it might discredit his testimony in other particulars. He also testified to selling the complaining witness a bicycle soon after the sale of the skates. He produced in evidence two sheets of paper, which he said were taken from his account book, upon which appeared an entry of
2. The complaining witness testified to a repetition of the crime on several different occasions. When this evidence Avas received the defendant’s counsel asked the court to then instruct the jury that, “by the introduction of plaintiff’s evidence, the state has elected to ask for a conviction upon the first act of intercourse alleged to have occurred about March 1st, or -March 5th, or 6th, 1911, to Avit, the first act of intercourse testified to by Mary Wad-dick,” and the court ansAvered that the question will stand open until the evidence is received. This ruling was objected to, but we think it was in the line of universal practice and Avas not objectionable. The defendant then asked the court “to at this' time require the state to elect upon AA-hich of the alleged offenses he Avill ask for a conviction in this case as shown by the testimony.” This request was also overruled. When the witness was excused from the AA’itness-stand the defendant again moved the court to instruct the jury “that the state, by the introduction of its
The defendant duly requested the following instruction: “You are instructed that the prosecutor has elected the act which he claims to have taken place on or about the 7th day of March, A. D. 1911, as the one upon which he Avill depend for a conAdction of the defendant, and you are further instructed that in your consideration of this case, your verdict will be for the defendant, unless you find from the evidence, beyond a reasonable doubt, that the defendant committed the act so elected, and as to this act you cannot find the defendant guilty on the evidence of Mary Waddick alone, as to the act she must be corroborated by testimony other than her OAvn.” This instruction was refused by the court, and the defendant excepted. The eighteenth instruction given by the court on its own motion Avas as follows: “You are instructed that if you should find from the evidence, beyond a reasonable doubt, that an act of sexual intercourse did take place between the defendant and said Mary Waddick, and that at the time of said intercourse the said Mary Waddick Avas under the age of 15 years, then you should find the defendant guilty as charged in the indictment” — and the defendant excepted.
No other instruction was, given to the jury by the court as to the election made by the prosecution. The order of
The instruction asked by the defendant Avas properly refused. That the prosecuting witness must be corroborated as to the particular act of Avhich the defendant is found guilty may in one sense be technically correct, but, in the connection proposed to be given to the jury, might and probably Avould be misleading. The request, hoAvever, was a suggestion to the court of the necessity of an instmction upon this point, and the eighteenth instruction given by the court amounts to a direct refusal to so instruct, and Avould, if taken literally by the jury, be inconsistent with a proper instruction. We think, therefore,
3. The complaining witness admitted that she had. sometime before the commission of this alleged offense, frequently after night been in the rooms of one Snyder, and that he had taken undue liberties with her; that the matter had become somewhat notorious and her brother had interfered to prevent her visiting Snyder’s room. She was then asked if Snyder had ever had intercourse with her; to which she objected, and the objection was sustained on the ground that the evidence was incompetent and immaterial. She was under the age of consent, and if the defendant had had intercourse with her, as she testified, it was immaterial whether others had. In this case, however, it was in evidence that she had given birth to a child. The crime therefore had been committed, and the question was, who was guilty. She had already testified that no one but the defendant had ever so used her. If that testimony was true, it was important evidence in the case; in fact, conclusive against the defendant, and the defendant should have been allowed to cross-examine her in that regard.
4. After the prosecuting witness had testified that the defendant and no one else was guilty of the crime, she was asked by her attorney: “Did you ever tell your folks anything about this?” She answered: “No> sir,” She was then asked: “Well, you did later on, didn’t you?” and. again, “What do you mean by that answer?” and she replied: “I didn’t until about the middle of September.” She was then asked: “And then to whom did you tell it?” This was objected to as an improper question. The objection was overruled, and she said: “I told it to my brother.” She further testified that, when her condition became known, her mother and brother several times asked as to who was to blame, and that she finally told her brother and then her mother that it was this defendant. The prosecuting attorney in his address to the jury stated: “The parents of the little girl had to tease to get her to tell
Again, it appeal's that the defendant’s wife had-died in Illinois and was buried on the 25th of September. In cross-examination the prosecuting attorney asked the defendant : “Have you ever been in Illinois since last March?” This was objected to, but the question was allowed, and he answered that he had not. This immaterial evidence was also made the basis of a remark to the jury in the argument- of the prosecuting attorney, in which he attempted to infer that one who would not be present at his wife’s funeral would be more likely to commit a crime such as that with which the defendant was charged. Without further discussion of this unpleasant matter, we take it for granted that this course of questioning and argm ment will not be repeated.
5. It is insisted that the sentence, seven years in the penitentiary, was excessive. The crime charged is a serious one. If the defendant is guilty, we cannot see that the court has abused its discretion in fixing the punishment.
For the errors indicated, the judgment of the district court is reversed and the cause remanded.
Reversed.
Dissenting Opinion
dissenting.
I do not think the rulings held to be erroneous influenced the jury in arriving at their verdict, nor that defendant was prejudiced thereby. In my judgment, the conviction should not be reversed for any reason stated in' the opinion. I do not put upon the conduct of the county attorney the interpretation suggested in the opinion, and I think that the prosecution as a whole should be commended by an affirmance.