103 Neb. 448 | Neb. | 1919
Appeal from a judgment of dismissal in a bastardy proceeding. The trial court at the conclusion of the evidence sustained a motion for a directed verdict in favor of the respondent.
The complainant, who was a girl between 16 and 17 years of age and whose education had only proceeded to the fifth grade, resided with her parents in Sioux county. In May, 1916, she went with her sister and brother-in-law to Scott’s Bluff county in an automobile. On the way they stopped at the home of respondent’s father, with whom he resided, and were allowed to spend the night in an unoccupied tenant house not far away. Later in the evening complainant went hack after some millc for her sister’s baby, and after the milking was done respondent accompanied her on her return. He was an unmarried man about 28 years of age. It is not disputed that the young people diverged from the path, and went to the hanks of a nearby stream, and it was there that .complainant testifies the first act of intercourse occurred. According to her evidence, they were equally desirous of the association. According
The motion to instruct was upon the ground that complainant omitted to call her sister and brother-in-law as witnesses, and did not try to obtain their testimony, and that her evidence was in contradiction to her former testimony.
The omission to take the depositions of the sister and her husband, who resided in another state, as to the time complainant returned to the house in May, was not so material as to justify a dismissal, and the statements made by complainant were not so inconsistent as to warrant such procedure. Her story at least has the merit of frankness, in that she does not make the not uncommon plea of being overcome by force, but openly confesses submitting to a man whom she had just met for the first time.
There is nothing to show that complainant had intercourse with any other man about the time conception must have taken place. "Whatever may be said of the
Reversed.