77 Neb. 773 | Neb. | 1906
Lawrence McConnell, hereafter called the defendant, Avas tried by the district court for Gage county on an information charging him with assault with intent to commit rape. He was found guilty and sentenced to the penitentiary for a period of seven years. To reverse that judgment he brings error to this court.
1. His first contention is that the court erred in receiving the evidence of Doctors Boggs and Pall as to the nature of certain stains found on the clothing of the pros-ecutrix. It is urged that this evidence was incompetent, because the doctors did not sufficiently qualify themselves to testify as expert, witnesses. While this question seems to be a close one, still we are of opinion that each of them showed such professional standing, knoAvledge and experience as required- the court to receive their evidence for Avhat it was worth, and the attack of counsel should have been directed to its weight, credibility and probative effect rather than its competency.
2. Defendant also claims, and strenuously insists, that the court erred in failing to instruct the jury that under the charge contained in the information the defendant, if the evidence warranted, might be found guilty of an assault and battery, or a simple assault. This assignment is argued with great force and at length. An examination of the record shows that the court failed to so instruct, and it also discloses that the defendant made no request for an instruction of that kind. That the charge of assault with intent to commit rape necessarily includes a charge of assault and battery and one of simple assault seems clear. In Prindeville v. People, 42 Ill. 217, the court said: “From all of the authorities, we are satisfied, that the general rule is, that, where a higher and more atrocious crime fully embraces all of the ingredients of a lesser offense, and when the evidence requires it, the jury may convict of the latter.” And no case occurs to us which can come more fully within the rule than does an
3. Counsel for the defendant further contends that the court erred in giving paragraph 10 of the instructions on his own motion; that the effect of that instruction was to inform or at least lead the jury to believe that the defendant could be convicted without any corroboration of .the evidence of the prosecutrix. We are fully committed to
4. Lastly, it is contended, and strenuously urged, that the evidence is insufficient to sustain a conviction. While we have carefully reviewed it, yet we decline to express any opinion upon that question. It is quite probable that the case may be tried again, and it would therefore be improper for us to do so at this time.
For failure to correctly instruct the jury as to the necessity of corroboration and giving the paragraph of the instruction complained of, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.