81 Neb. 585 | Neb. | 1908
At the October, 1907, term of the district .court for Boone county an information was filed against one Arthur R. Leedom, hereafter called the defendant, charging in substance that in said county and in the state of Nebraska, on the 20th day of July, 1906, and upon various times and occasions subsequent to that date, and up to and including the month of November, 1906, the defendant, a male person of the age of 18 years and upwards, did assault and carnally know one Edith F. Mathews, a female child under the age of 18 years, and not previously unchaste. The defendant by demurrer challenged the sufficiency of the information on the grounds of duplicity and a misjoinder of offenses. The demurrer was overruled. Thereupon a plea of not guilty was interposed. A jury was impaneled, the trial proceeded, and, when the state commenced to offer its evidence, counsel for the defendant moved ore terms that the prosecutor be required to elect upon which of the several offenses charged in the information he would proceed to trial and rely for a conviction. The record discloses that, thereupon, the following proceeding took
The defendant first contends that the information charged him with the commission of several separate, distinct and substantive crimes; that the jury were not advised or informed which one of the several offenses was submitted to them for consideration; that, therefore, some of the jurors might have found him guilty of one of feaid charges and others of some other offense, all of which was prejudicial to his rights, and he is, therefore, entitled to a new trial. We are constrained to say, however, that we do not so understand the record. That each act of sexual intercourse between the defendant and the prosecutrix was a separate and distinct crime, there can be no doubt; and, Avliile we do not approve of the charging part of the information, yet, under the rule announced in Lanphere v. State, 114 Wis. 193, the form of the charge furnishes no ground for a reversal of the judgment in this case. It was there said: “The failure of the court to strike from the information the useless words, £and on divers other days and times between the said 4th day of August and the 1st day of September, A. D. 1898,’ was .not prejudicial to the rights of the accused. The words were mere surplusage. The naming of a day certain was essential, and that was satisfied.” The information there was like the one in the case at bar, and the court treated the words, “and on divers other days and times between said 4th day of August and the first day of September, A. D. 1898,” as mere surplusage, and not at all prejudicial to the rights of the accused. Again, we think it may be said, strictly speaking, that the information charges but one offense, to wit, that of July 20, 1906. No other date, time or place is alleged, and yet, if we were at all in doubt as to whether or not the defendant was prejudiced by the form of the information, the rulings of the court thereon, or the manner in which the trial was conducted, we would not hesitate to reverse the judgment
It is next contended that the district court erred in admitting the letters of the defendant to the prosecutrix, designated as exhibits “A,” “B,” and “C,” in evidence, for the reasons stated in the objections thereto at the trial, which read as follows: “The defendant objects to the introduction of exhibits A, B, and C offered by the state, for the reason that the state has elected to rely upon the alleged act of intercourse of July 20, 1906, and there is no evidence in the record that the pregnancy testified to
Complaint is made of instructions numbered 12 and 13, not because of anything contained in them, but because they fail to state that there was no corroborative evidence that the prosecutrix was not previously unchaste. It is claimed that such corroboration was necessary. We are satisfied that such an instruction was not warranted by the evidence, and, further, we are not advised that any court has held such corroboration necessary. We have taken as advanced grounds on this question as any court by our former holding that the jury in such cases must be satisfied by the evidence, beyond a reasonable doubt, that the prosecutrix was not previously unchaste; yet we are now urged to go further and hold that her testimony
By instruction numbered 17 the jury were told that the evidence as to the reputation of the prosecutrix in the community where she lived prior to July 20, 1906, was not admitted upon the issue involving her character, but only to discredit the testimony tending to establish the act of lewdness testified to in behalf of the defense. Complaint is made of the giving of that instruction. Authority for the admission of such evidence is not wanting. See Woodruff v. State, supra, and State v. Prizer, 49 Ia. 531. The evidence being admissible for that purpose only, and not to establish general reputation for good character, it was proper to so inform the jury.
Finally, the defendant contends that the court erred in refusing instructions numbered 7, 8, 10, and 11, tendered and requested by him. We have examined each of those requests, and find that some of them were properly refused because they were not a correct statement of the law, and that such as were correct in that respect were given by the court on his own motion. So we are satisfied that there was no error committed in giving and refusing •instructions.
As we read the record, the fact of defendant’s illicit intercourse with the prosecutrix on the 20th day of July, 1906, is not seriously questioned, and the only substantive defense interposed by him was her alleged previous unchastity. The defendant was given full opportunity to establish that fact if it existed. The jury, after hearing the evidence and being properly instructed by the
The judgment of the district court is
Affirmed.