76 Neb. 49 | Neb. | 1906
The plaintiff in error was convicted of rape on a female child with her consent. To reverse this judgment he prosecutes error to this court. The principal error relied upon is that the verdict is not supported by sufficient evidence.
The prosecutrix is a girl ivho was at the time of the alleged offense between 14 and 15 years of age. She testifies that she first saw the defendant about the 1st of September, 1904; that about the 11th of September she was staying at the home of a Mr. Gutch in Pierce county ; that two acts of sexual intercourse took place between her and the defendant with her consent, one while she was working for Mr. Gutch, and one a short time afterwards when she was at home and the defendant came there with a buggy and took her with him to a point near a Mr. Melchers. Her story as to the second time is contradictory and inconsistent as to the place where she met the
The offense charged is a serious one and the defendant, if guilty, merits the severe punishment inflicted, but, on the other hand, it would be a denial of the defendant’s constitutional rights if he were committed to the penitentiary for a term of years without a fair trial, and unless his rights thereto had been properly preserved. The evidence of the prosecutrix is contradictory and somewhat improbable in itself. It certainly seems strange that this girl should go with a man almost a total stranger to her and submit herself to him upon his mere invitation. There is an entire lack of circumstances corroborative of the principal fact, and with the exception of the testimony of Dr. Myers there are no other circumstances proved which can in anywise be said to corroborate the testimony of the prosecuting witness as to matter of ■ probative value. It is urged by the state that the testimony of her brother, a boy of 11 years, is corroborative of the prosecutrix, but his testimony is that the defendant came to their home with a buggy, and his sister went
But feAV objections were made by defendant’s counsel to the introduction of evidence and few exceptions taken. No instructions were requested by the defendant, and the jury were not told that the evidence of the prosecutrix required corroboration. The defendant has not assigned
The judgment of the district court is reversed and a new trial ordered.
REVERSED.