54 Neb. 44 | Neb. | 1898
Frank Maxfield was tried and convicted of the crime of rape, alleged to have been committed upon the person of a girl between sixteen and seventeen years old. His motion for a new trial was denied, and to reverse the judgment and sentence pronounced against him is the object of this proceeding.
Complaint is made of the sixth instruction, which reads as follows:
“6. You are instructed that a doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that were the same kind of doubt interposed in the graver transactions of life it would cause a reasonable and prudent man to hesitate and pause, it is not sufficient to authorize a verdict of not guilty. If, upon consideration of all the evidence, you can say you have an abiding conviction of the truth of the charge, amounting to a moral certainty, you are satisfied beyond a reasonable doubt.”
It is argued that the foregoing did not correctly define a reasonable doubt, but required the defendant to establish his innocence before he could claim an acquittal. An instruction in substantially the same language was approved by this court in Polin v. State, 14 Neb. 540, and Willis v. State, 43 Neb. 102. On the strength of those
The jury, after deliberating upon their verdict for some time, returned into court, when one of their number, in answer to an inquiry made by the presiding judge, stated, “What bothers us most is the competency of the prosecuting witness — what weight we should give conflicting and contradictory evidence — just that alone.” Thereupon the court instructed the jury: “You yourselves are the sole judges of the weight of the testimony that has been introduced before you, and in determining what weight to give the testimony of the complaining witness in this ease, you should take into consideration her appearance while upon the stand, her apparent interest or lack of interest in the proceeding, if any appear, and her manner of testifying, and, in the light of all her testimony and.of the other evidence in the case, you should give to her testimony such weight, and only such weight, as you think under all the circumstances it is entitled to. And if upon consideration of all the evidence in the case and the former instructions of the court you find that all the material allegations of the complaint have been proved beyond a reasonable doubt, you should find the defendant guilty. If you find that the material allegations of the complaint have not been so proved, then you should find the defendant not guilty.” It is not argued that the foregoing charge contained any erroneous statement of the law, or that it was not applicable to the case as made by the evidence, but the contention is that the instruction was not responsive to the inquiry made by the juror, and for that reason was misleading and prejudicial. This criticism is unavailing. The doctrine has been repeatedly stated that mere non-direction by the trial court is no cause for the reversal of a criminal cause where there has been no refusal of a proper instruction tendered. (Hill v. State, 42 Neb. 503; Housh v. State, 43 Neb. 163; Pjarrou v. State, 47 Neb. 294.)
Another ground urged for a reversal is that the verdict
Q. Now, the matter of having sexual relations was not discussed between you and him?
A. No, sir.
Q. Did he put his hands on you?
A. Yes, sir.
Q. What did he do when he put his hands on you?
A. He got me down.
Q. Where?
A. On the floor.
Q. Now, then, he fooled with you a while?
A. Yes, sir.
Q. And that is really all he did do, isn’t it?
A. Yes, sir.
Q. That is all he did?
A. Yes, sir.
Q. Now, as a matter of fact he never consummated sexual relations with you — he simply took liberties with you with his hands?
A. Yes, sir.
Q. That is right?
A. Yes, sir.
Q. On the next Monday morning you saw his wife, didn’t you?
A. Yes, sir.
Q. You were at school at that time?
A. Yes, sir.
Q. His wife came to the schoolhouse there and had a conversation with you?
A. Yes, sir.
Q. And she charged you with being too intimate with Frank?
A. Yes, sir.
Q. And you told her you hadn’t been?
A. Yes, sir.
Q. You told her that?
*49 A. Yes, sir.
Q. She tried to make you admit that he had done something wrong there at that time and you told her it wasn’t so?
A. Yes, sir.
Q. And she threatened to arrest you?
A. Yes, sir.
Q. She went off and filed a complaint?
A. Yes, sir.
Q. After that you went home?
A. Yes, sir.
Q. By this time your father had found out about it?
A. Yes, .sir.
Q. And he got very angry?
A. Yes, sir.
Q. And when he told you about it you told him that you hadn’t done anything wrong, but he just fooled with you?
A. Yes, sir.
Q. And he took hold of you and threw you down and made you admit the whole thing?
A. Yes, sir.
Q. And he told you you would have to have this man arrested?
A. Yes, sir.
Q. And he insisted on you doing.it, and you did do it?
A. Yes, sir.
Q. As a matter of fact this man never consummated sexual relations, but simply fooled with you on that Sunday, isn’t it?
A. Yes, sir.
On redirect examination Sadie Stevenson reiterated more than once the statement that the defendant did not have sexual intercourse with her, and that she so informed the defendant’s wife, but subsequently, on being further re-examined by Mr. Day, the county attorney, she testified to having had illicit relations with the accused, and that she did not understand all the questions put to her on cross-examination.*50 Recross-examination:
Q. Before you went on the witness stand you have had a number of talks with Mr. Day?
A. Yes, sir.
Q. And he has been telling you about what he wanted you to swear in the case?
A. Yes, sir.
Q. And he told you that he wanted you to swear that he put his parts in yours?
A. Yes, sir.
Q. And that is the way he told you to state it?
A. Yes, sir.
Q. As a matter of fact, when I examined you with reference to Maxfield fooling with you, you understood just exactly what I was saying to you?
A. Yes, sir.
Q. You were then telling the thing as it was?
A. Yes, sir.
Q. And when you answered him you were telling the thing the way he told you to tell it in court?
A. Yes, sir.
Q. You told your father when he first asked you about it that Maxfield hadn’t done anything to you, didn’t you?
A. Yes, sir.
Q. Then he took hold of you and threw you down and told you you had to testify «to it, or tell it in court, or something like that?
A. Yes, sir.
No other witness called by the state in chief testified to any fact which tended in any degree to establish that a rape was committed upon the prosecutrix. That she visited Maxfield’s house during the afternoon of the day in question and remained therein for a time is disclosed by the testimony of Mrs. William Tobey, a witness called and examined by the defense and who resided on the opposite side of the street, a short distance from defendant’s home. Mrs. Tobey testified, in effect, that she saw
It is a well-established principle that in all criminal prosecutions by indictment or information the law surrounds the accused with the presumption of innocence, and he cannot be lawfully convicted unless the evidence adduced on the trial establishes his guilt beyond a reasonable doubt. In the light of this rule can it be truthfully asserted that this evidence'was sufficient to justify the verdict? We are all agreed that it is not. The statements of Mrs. Tobey while upon the witness stand, if true, render quite improbable the truthfulness of por:
Reversed and remanded.